Hand v. Weidner

151 Pa. 362 | Pa. | 1892

Opinion by

Mb. Justice McCollum,

This is a bill to reform a defective certificate of acknowledgment. It is authorized by the act of May 25, 1878, P. L. 149, and it charges inter alia that on the 17th of April, 1868, Laura Weidner and her husband A. J. Weidner, united in a deed of release and quit claim to Edward Dolph his heirs and assigns, of the share or interest of the said Laura in the estate, real and personal, of her deceased father, which deed it alleges was acknowledged by them in due form of law before N. W. Warner, a justice of the peace duly authorized to take acknowledgments. It charges also that the said Laura was examined separate and apart from her said husband but that it does not appear in the certificate appended to the deed that such examination was made, and it prays that a decree may be made for the reforming of the said certificate so that the same may be in accordance with the facts. The allegations to which we have referred are contained in the second paragraph of the bill, and are met by an unequivocal denial in the second paragraph of the answer filed by the Weidners. This answer is, we think, responsive, and it casts on the appellants the burden of sustaining their averments by the proof which the law exacts in such cases: Eaton’s Appeal, 66 Pa. 483; Burke’s Appeal, 99 Pa. 350; Rowley’s Appeal, 115 Pa. 150; Bell et al. v. The Bank, 131 Pa. 318. The learned judge of the court below, in his opinion sustaining the exceptions to the master’s report, has fairly and sufficiently distinguished the present case from Cressona Association v. Sowers, 134 Pa. 354.

The certificate of acknowledgment is, in the absence of fraud or duress, conclusive of the facts therein stated, but it does not tend to establish the existence of other facts. The allegation in the bill that Laura Weidner was examined separate and apart from her husband derives no support from it. We must therefore have recourse to the testimony of the witnesses to determine whether such allegation is well founded. The only persons called by the appellants on this point, were N. W. Warner bjr whom it is claimed the acknowledgment was taken, and A. J. Weidner who was called as on cross-examination. Warner when first examined testified substantially that the deed was not acknowledged before him, although his genuine signature appeared on the certificate, but he after-wards admitted that he had no recollection on the subject. As to the evidence of Weidner it is sufficient to say in the language of the learned judge of the court below, “ the only legitimate inference to be drawn from it is, that neither he nor his wife ever acknowledged the release.” It follows that the material allegation of the bill, to wit, that Laura Weidner was examined by the magistrate separate and apart from her husband, is not sustained.

The specifications of error are overruled.

Decree affirmed and appeal dismissed at the cost of the appellants.