Goza v. Browning

96 Ga. 421 | Ga. | 1895

Simmons, Chief Justice.

This was an equitable action to cancel a deed alleged to be a forgery. On the trial of the case the plaintiffs, for the purpose of proving by comparison of handwriting the alleged forgery, offered in evidence a deed purporting to be signed by the same person whose name was signed as grantor to the alleged forged deed. The deed thus offered appeared to have been executed more than thirty years prior to the time of the trial, and there was evidence that the alleged grantor surrendered possession to the person named as grantee therein, and that the latter remained in possession, claiming under the deed, until she sold the land and turned over the deed to another, who remained in possession of the land up to the time of the trial, and from whose custody the deed was produced. Under this state of facts, we think the deed offered was so far proven to be the deed of the alleged grantor and so far established the genuineness of his signature thereto, as to authorize its admission in evidence as a standard of comparison (Code, §§8840, 3779, 3837); and when admitted for this purpose, the plaintiffs would be entitled to show, as they undertook to do, by an expert in handwriting, that in his opinion, upon a comparison of the signature of this deed with the signature of the deed sought to be cancelled, the signatures were not made by the same person. (See Lawson on Expert and Opinion Evidence, Rule 57, p. 323 et seq.) It was not necessary that the plaintiffs should call or account for the subscribing witnesses to the deed sought to be cancelled, before introducing other witnesses to dispi’ove its genuineness. "Where a party seeks to prove the execution of a deed, the rule laid down by the court in this case, that the subscribing witnesses must first be called or accounted for, is applicable; but where it is sought to disprove the execution, or, in other words, prove that the deed is a forgery, it is not necessary to call or account for the alleged subscribing witnesses. In the case of Jordan v. Faircloth, 14 Ga. 544, Judge Lumpkin, in discussing this question, says: “It was not an offer on the part of the defendant to prove the deed, but to disprove it by the nominal grantor. It would be hard indeed to require him to resort to witnesses who he protests have no existence; who are either men of straw, or if i’eal persons, whose names as witnesses have been fabricated. In analogy to the old ceremony of calling on the persons present to prove livery of seizin, we still resort to the subscribing witnesses first, to prove its exe■cution. But this rule cannot apply to a forged deed; and one, too, which the party is not seeking to set up in order to derive a benefit under, but which he is resisting and endeavoring to defeat.”

Judgment' reversed*