106 Va. 603 | Va. | 1907
delivered the opinion of the Court.
The purpose of the bill filed in this case was to* have declared null and void a deed of trust to one O. B. Fuqua, appearing on the records of the Corporation Court of the city of Boanoke, to secure to the Lynchburg Trust and Savings Bank, of Lynchburg, Va., a corporation, the payment of the sum of $1,500, evidenced by one negotiable note payable three years after date, and the interest thereon payable semi-annually, evidenced by separate notes of $45.00 each, upon the ground that both this deed of trust and the notes it secured were forgeries. The deed bears date the 8th day of August, 1899, and purports to have been acknowledged by Mary K. Helm (appellant here) before J. W. Boswell, a notary public, qn the 10th day of August, 1899.
The appellant, whose maiden name was Mary B. Kimbrough, is a resident of the state of Arkansas, and the widow of Thomas C. Helm, lately a resident of that state, who died in 1895. Her husband was a former resident of Boanoke, and a brother of Mrs. Fannie P. Jones, formerly the wife, now the widow, of the late S. E. Jones, an attomey-at-law of the latter city.
The lot conveyed in the deed in question, to-wit: Lot Ho. 1, section 22, of the Lewis Addition to the city of Boanoke, lies in that city, .and appellant’s husband purchased an undivided one-half interest in the lot from Mrs. Jones, which was deeded
It appears that in February, 1898, appellant, together with S. E. Jones and wife, and solely for the accommodation of S. E. Jones, executed a deed of trust, by which they conveyed the said lot to one Gilliam and others, trustees, to secure to the Lynchburg Perpetual ■ Building and Loan Company the payment of the sum of $500, evidenced by a penal bond executed in accordance with the custom of the building and loan company, which deed was duly recorded; that at the time of appellant’s purchase of the undivided interest of Mrs. Jones in this lot the question of the existence of the lien for $500 came up, and S. E. Jones wrote to appellant, who was then in Arkansas, and enclosed to her what purported to he a certificate from the clerk of the court in which the deed of trust securing the $500 was recorded, to the effect that the deed of trust had been paid off and released, which certificate turned out after-wards to he a forgery.
In the year 1902 S. E. Jones died under circumstances indicating suicide, his body being found near the town of Parkersburg, W. Va., in the Ohio-river, and his clothes, containing a bottle of chloroform, found on the bank near where, the body was recovered. The death of Jones resulted in discoveries being made by appellant as to other frauds committed upon her by him, which led up to the further discovery a few
It further appears that at the time of the execution of the deed of trust in August, 1899, the deed of trust to Gilliam and others, trustees for the Lynchburg Perpetual Building and Loan Company was unsatisfied, and there was a balance due thereon of $121.15; and that upon the delivery of the deed to the Lynchburg Trust and Savings Bank it paid off the amount of that deed of trust to the Lynchburg Perpetual Building and Loan Company, about $136.92, in interest, taxes and expenses, and the residue of the loan, amounting to $935, was paid by check of A. E. King to the order of Mrs. Mary B. Helm, which was delivered by King to J. W. Boswell, and upon its presentation at the bank with the names, first, of Mary B. Helm, and then of S. E. Jones, attorney, endorsed thereon, it was paid to Jones.
The Lynchburg Trust and Savings Bank demurred to the bill, on the ground that the National Exchange Bank, upon which the check of King was drawn, was a necessary party thereto. Its demurrer was sustained, and thereupon the court ordered that the National Exchange Bank and A. E. King be made parties defendant to the bill, which was accordingly done.
The bill having been thus amended, the Lynchburg Trust and Savings Bank and A. E. King both demurred to and answered the bill; and upon the bill, the demurrers and answers thereto, general replication to the answers, the exhibits filed with the pleadings, and depositions taken and filed on behalf of both plaintiff and defendants, the cause was argued and submitted to the court on the 14th day of May, 1904, and the court appears to have announced its decision either then or shortly thereafter; hut the decree was not entered until July 16, 1904, which decree overrules the demurrers to the bill, and, upon
Before the entering of this decree, and in fact on the 16th day of May, 1904, two days after the case was argued and submitted to the court for its decision, there was filed with the papers in the cause, in the clerk’s office of the court, the deposition of R. B. Helm, taken on behalf of appellant (plaintiff below), which she asked that the court should read and consider before reaching its conclusion in the case; but this was refused by the decree of July 16, 1904. It is from that decree this appeal is taken.
The ruling of the court below, sustaining the Lynchburg Trust and Savings Bank’s demurrer to the bill on the ground that the National Exchange Bank, upon which the check of King was drawn, was a necessary party to the bill, constitutes appellant’s first assignment of error.
We are of opinion that there is no merit in this assignment, not only because appellant waived her right by amending her bill, but no ground is shown upon which she could rest the claim that the ruling complained of was injurious to her.
The refusal to consider the deposition of R. B. Helm is assigned as error; and it is argued for appellees that as the deposition was not taken and filed on or before May 14, 1904, it could not be properly considered, although filed before the decree of the court was made dismissing the bill for the want of proof. It is further contended that the refusal to consider the deposition was proper, because it had been taken without notice to appellees, and because the case had not been heard on it.
It is true that the notice of the taking of this deposition does not appear in the record, but the notary before whom it was taken in Winston-Salem, N. C., on May 14, 1904 (where R.' B. Helm resided, and was too feeble to come to Roanoke, Va.), certifies that the deposition was taken before him “pursuant to notice hereto attached.” It was filed two' months' before the entry of the decree here complained of, and there are no ex
We are of opinion that under these circumstances the appellant had the right to have the deposition of R. B. Helm read and considered in her behalf, and that the court below erred in refusing to read and so consider it.
The Lynchburg Trust and Savings Bank and A. E. King both demurred to the bill of appellant, on the ground that under the law the trustee and beneficiary were bona fide purchasers for value, and that the certificate of acknowledgement before the notary public was a judicial act, and after its recordation it could not be invalidated except upon the ground of fraud on the part of those claiming under it; in other words, the bill failed to allege sufficiently fraud on the part of the trustee and the beneficiary named in the deed. These demurrers were overruled, and this ruling appellees assign as cross-error under Rule IX of this court.
The bill clearly charges that the signature to the deed was a forgery, and sets out facts and circumstances sufficient to give to the trustee and the beneficiary knowledge that it was claimed that fraud had been perpetrated upon the appellant in the procurement-and recordation of the deed. Ordinarily where a deed is attacked as fraudulent the fraud on the part of the trustee, or the beneficiaries thereunder, must be specifically charged and clearly proven. But it is difficult to see how else 'the genuineness of a signature to a deed could be put in issue better than by charging, as was done in this ease, that the signature in question was a forgery. If a forgery, it is void and inoperative for any purpose whatever.
We do not, however, consider it necessary to pass more directly upon this cross-assignment of error, for the reasons, as we shall presently see, that the vital question to be determined upon this record is whether or not appellant in fact endorsed her name on the back of the check of A. E. King, or received the money drawn thereon. That she did not receive the money
As has been remarked, the contention has been made by appellant that she never appeared before J. W. Boswell, notary public, and acknowledged the deed in question, and the further contention is made on her behalf that if the court should be of bpinion that she did in fact so appear before Boswell and acknowledge the deed, its recordation is null and void because of the incapacity of Boswell to take and certify her acknowledgement, by reason of the fact that he was to have been benefited by the effectuation of the loan from the Lynchburg Trust and Savings Bank to be secured by the deed, in that he was to, and did actually, receive a brokerage on the amount of the loan, and certain insurance premiums out of which he got a commission arising from a policy issued by him as a part of the transaction; but in the view that we .take of this case it is unnesessary for us to pass upon either of those questions.
It appears that of the loan made $50.27 was paid for taxes and costs of recording the deed of'trust; $427.45 applied to the payment of the balance then due on the loan of $500; $26.55 in payment of brokerage, insurance premium and amount expended by I. W. Boswell for revenue stamps; and the residue, $935.63, the balance of the loan, except $15.00 which A. E. •King retained for himself as a fee for his services in this transaction, it is claimed was paid by the check of King to Mrs. Mary B. Helm, and upon her endorsement and that of S. E. Tones rightly paid by the bank upon which the check was drawn. How appellant does not ask to, and could not, escape the payment of the $50.27 for taxes on her property, and does not deny that her property was liable for the payment of the $427.45, the balance due on the loan of $500; and even if the
The evidence in the case upon this question has been given most careful consideration. On the one hand Mrs. Helm is shown to be a lady of high standing and reputation for truth and veracity by a number of totally disinterested witnesses who have had occasion to know her and to ascertain her character and reputation in that respect; also a number of witnesses who are acquainted with her handwriting testify that the signature in question is not her signature. On the other hand appellees, the Lynchburg Trust and Savings Bank and A. E. King, its attorney, make no claim of ever having any transaction with appellant in person, either in connection with the deed or in the payment of the loan claimed to have been made by reason of the execution and recordation of that deed. The whole transaction on behalf of the Lynchburg Trust and Savings Bank as to the making of the loan, the execution of the deed and its recordation, was through its agent J. W. Boswell, and the check of King, made payable to Mrs. Mary B. Helm,
We are of opinion that the evidence is of such a character that the question as to whether or not the signatures in question are genuine or forgeries is properly to be determined by a jury; and, therefore, the decree appealed from will be reversed and annulled, and the cause remanded to the Corporation Court of the city of Roanoke, with direction to make up and have tried by a jury the issue whether or not the signature “Mary B. Helm” to the deed in question and the signature purporting to be her signature on the back of the check.of A. E. King, payable to the order of Mrs. Mary B. Helm, or either of them, are the signatures of appellant or forgeries; and in the trial of this issue the printed evidence upon which the case was heard in this court may be read and considered, including the deposition of R. B. Helm, and also such additional competent evidence as either party may introduce. If upon the trial of the aforesaid issue it is determined that the signature of the appellant to the deed of trust in question is a forgery, the deed should be set aside as null and void, but reserving to the appellee, the Lynchburg Trust and Savings Bank, a lien on the property of appellant which the said deed of trust purports to
Reversed.