12 A.D. 188 | N.Y. App. Div. | 1896
This action was brought to set aside a deed of premises, purporting to have been executed by the plaintiff to the defendant Ella M. Dorthy,, and mortgages on the samé premises afterwards executed by the defendants Dorthy to the defendants- The Monroe County Savings Bank and Hiram L. Barker, respectively.
The principal facts found by thei court are substantially as follows: That, on the, 12th day of December, 1892, the defendant John F. Dorthy caused to be recorded an instrument, in writing, under seal, purporting, to be a deed executed and acknowledged by the plaintiff on the 31st day of October) 1892!, reciting that, in consideration of one dollar and other valuable considerations, she, as the grantor therein named, conveyed to the defendant Ella M. Dorthy the premises. therein described; that the plaintiff never executed or acknowledged the said instrument, and never knew of the existence thereof until some time in April, 1895, when a rumor came to her that' such an instrument had been made, which was confirmed by an examination thereof made by her on or about the 23d day of May, 1895 ; that) although the signature affixed to said instrument is genuine) ‘the plaintiff signed her name thereto without any knowledge or information that the paper was a deed of her said premises, or that, it was an instrument which in any manner -affected her interest therein; that she never at any time had any intention of selling, Conveying or incumbering said premises, and her signature to said paper writing, purporting to be a deed thereof, was procured by said John F. Dorthy by some trick or artifice perpetrated by him -in some way or manner which does not appear and is unknown to the plaintiff; that she never acknowledged the execution of said instrument in any manner, and never appeared before the officer whose certificate of her acknowledgment is affixed thereto, for the. purpose
As a conclusion of law, the court finds that the said paper writing, purporting to be a deed of conveyance from plaintiff to Ella M. Dorthy is false, fictitious, fraudulent and void, and that the record thereof, together with the records of said mortgages, should he canceled of record, etc. It is assumed that the defendant mortgagees are bona fide purchasers for value paid.
The doctrine applicable to the principal question presented here, and which controlled the learned court below in its decision, is that a certificate of acknowledgment should not he overthrown upon evidence of a doubtful character, such as the unsupported testimony of interested witnesses, nor upon a bare preponderance of evidence,
. The court below states in its opinion that the presumption arising from the deed, that it was duly executed and acknowledged, is overcome by the most convincing proof.' With this judgment we fully concur. And in addition to the evidence, presented to the court, its'decision is strengthened by the failure pf the defendants to call Ella H. Dorthy, the person named as grantee in the deed, as a witness in their behalf. The complaint charges that the plaintiff never executed, acknowledged or delivered the deed, and that it was false, forged, fraudulent and fictitious, and yet the. grantee remains silent, and the defendant mortgagees, whose-title is based upon the validity of the. deed, neglect to produce her in defense of their, title. Such omission is a proper subject for consideration by the court or- jury in weighing the evidence. '“ The. findings of a ' master.in matters of fact are' not to be reviewed by the court unless ■ clearly shown to be erroneous. And, in equity, as at law, the omission of a party to-testify in. control or explanation of testimony given by others in his presence-is a proper subject of consideration.” . (McDonough v. O’Niel, 113 Mass. 92.)
And-in- the language of the court in Kirby v. Tallmadge (160 U. S. 379): ££As they had it in their power to explain the suspicious circumstances connected with the transaction, we regard their failure to do sd as a proper subject of comment. £ Alhevidence * *■ * is to be weighed according to the proof which it was in the power, of one side to have produced and.-in the power of the other side to have contradicted.1’ 'It would' certainly have been much more satisfactory if the defendants,, who must have been acquainted with all the facts and circumstances attending this somewhat singular transaction, had gone upon the stand and given their version of the facts. £ The conduct of the party in omitting to produce that evidence in elucidation cf the subject-matter-in dispute,-which is within his power, and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him,, since it raises strong suspicion
The defendant mortgagees rested their defense mainly upon the presumption arising from the certificate of acknowledgment and upon expert testimony as to the genuineness of the signatures of the plaintiff and of the commissioner who purported to have taken the acknowledgment. They also called the commissioner as a witness in their behalf, but his testimony was in favor of the plaintiff.. The presumption created by the certificate was overcome by the evidence_ adduced and by the circumstances, inferences and probabilities of the case. The grantee in the deed was a very important witness for the defense, and, as we conceive, it was the duty of the defendants to call her. Her omission to testify creates not only a very strong presumption against her, but the failure of the mortgagees to call her as a witness in their behalf is a circumstance deserving much consideration in weighing the evidence of the mortgagees themselves.
It may be a trite observation to make that the rights of the parties are to be determined by the facts and circumstances as they exist here, and are hot to be adjudged by decisions in other cases presenting facts substantially different. . Where the question is one to be determined upon the facts of the case, no one case can be an authority for another; nor is it a very profitable inquiry to consider whether one case resembles another in its facts. A decision may, perhaps, be a binding authority as to the conclusions of fact arrived at where the facts are identical, but not otherwise. In any other case the tribunal must investigate the facts for itself and determine whether the evidence adduced is sufficient to create a legal or moral certainty, either the one way or the other. (London Joint Stock Bank v. Simmons, 1 App. Cas. [1892] 208, 210, 221.)
Appellants rely upon Kerr v. Russell (69 Ill. 667). That case simply holds that the unsupported testimony of the party shall not prevail over the official certificate •—• and especially after the lapse of thirty-four years. (See criticism in 14 Alb. L. J. 273.) To the same effect are Lickmon v. Harding (65 Ill. 505) ; Fitzgerald v.
In the case cited it was duly observed that the, courts frequently fail to distinguish between cases of acknowledgments by married women and cases in which married women were not concerned. And an examination of the cases will show that the courts, sometimes fail to distinguish between those cases where the married woman actually appeared before the officer and acknowledged the execution of the instrument, but claims that the facts stated in the certificate are false and fraudulent, and those cases where the contention is made that the officer never acquired jurisdiction, power or authority to take any acknowledgment. Obviously there exists a material and substantial distinction,- and yet it appears that decisions of the former character have been referred to indiscrimi- - nately. (Albany Co. Sav. Bank v. McCarty, 149 N. Y. 71.)
The doctrine of the Supreme Court of the United States is that • a certificate of a separate examination, made in the prescribed form, cannot be controlled or avoided, except for fraud, by extrinsic evidence of the manner in which the examination was' conducted by the magistrate. (Hitz v. Jenks, 123 U. S. 297, 303-305.)
The cases of Insurance Company v. Nelson (103 U. S. 544) and Young v. Duvall (109 id. 573) are of a similar character — thé officer acquired jurisdiction by the appearance of the married woman.
In Ford v. Osborne (45 Ohio St. 1) the wife claimed that she was induced to sign the deed by the fraud of her husband, and they-both testified that she never acknowledged it, and the commissioner had no distinct-recollection of the fact, besides his own signature.' In view of other circumstances stated in the report, it was held that the certificate must stand as true, especially as respects a bona, fide purchaser. .. ■ ' .
In Barnett v. Proskauer & Co. (62 Ala. 486) the supposed-grantor denied the execution of the deed and of. any knowledge of its existence until the suit was commenced. She was corroborated by the
In view of the finding of the court, supported by convincing proof, that the plaintiff never executed, delivered or acknowledged the instrument as her act and deed, it becomes unnecessary to review the numerous cases bearing upon the subject in question. The cases are fully collated in 1 American and English Encyclopaedia of Law (2d ed.), 555-562.
But it is insisted that the plaintiff is in some ways estopped, as against the defendant mortgagees, from showing the non-execution and non-delivery of the instrument, and the doctrine is invoked that where a party is induced to sign and deliver an instrument, through some fraud, trick or artifice, and is chargeable with negligence in so doing, he is liable to an innocent party who acted to his prejudice upon the faith of the instrument. (Page v. Krekey, 137 N. Y. 307, 312; Nat. Exch. Bank v. Veneman, 43 Hun, 241.)
But here the plaintiff was not chargeable with negligence in signing the paper. She was not tricked into signing a deed of her premises to one person, supposing it to be a conveyance to another. Her signature to the paper was obtained without any knowledge or information that it was a deed of her property. " She never had any intention of passing the title of it to any one, and, therefore, is not in the position of having placed confidence in another, and thereby intentionally enabling a fraudulent grantee to injure an innocent third party. Nor did she deliver the instrument as an operative
■An absolute delivery is one which is complete upon the .actual transfer-of the instrument from the possession, of the grantor; and ■ it may b,e by acts merely, by. words merely, or by both combined but in all cases an intention that it shall .be a delivery must exist.. (Ford v. James, 2 Abb. Ct. App. Dec. 159; Carnes v. Platt, 1. Sweeny, 140; 7 Abb. Pr. [N. S.] 42.)
In Jacobs v. Alexander (19 Barb. 243) the party named as grantee .in a deed, executed and acknow-ledged, obtained possession of it after the grantor’s death and conveyed to the plaintiff, and the deed was held inoperative for want of delivery. It is tiot stated in the-, report whether the plaintiff was a bona fide purchaser for valué,; and evidently that, circumstance was deemed immaterial.
Again, it is not apparent that the defendant mortgagees were-acquainted with the -plaintiff’s signature, or that they parted with any valuje upon the strength of it. It does not even- appear' that the-officers of the bank, or the defendant Barker, inspected the signature at the time of making the loans. Dorthy merely says that-he “ thinks ” the deed was taken over to the bank. . The fact of the. matter undoubtedly is, that the mortgagees relied upon the truth of' the certificate as to-the due execution-of the deed, rather than upon -the signature,, as evidence of' stieh execution. They placed their-reliance 'upon the integrity .of the' officer who certified, to an instrument which he had no power, jurisdiction or authority to make, and. not upon any execution of the paper -independent'of such certificate.. It would", certainly have been an-unusual thing, for the bank especially to have advanced money upon the strength of an unacknowledged atid unrecorded deed. In the absence of such acknowledgment, the defendants .would have sustained ho loss or injury. .The acknowledgment and record being unauthorized and fraudulent, upon what principle is the. plaintiff -estopped from showing The-truth ? 'She was in no way responsible for the making "Of such cer
Authorities cited by appellants are inapplicable to the facts and circumstances of this case. In Simpson v. Del Hoyo (94 N. Y. 189) the conveyance was procured by "means of fraudulent representations, and the doctrine was stated to be that “ when real or per- • sonal property is obtained from one by fraud upon the purchase thereof, and the vendor thus intentionally parts with the title, the vendee can always, by a sale to a bona fide purchaser for value, give a title good as against the vendor.” This case is considered and distinguished in Seymour v. McKinstry (106 N. Y. 230).
The decisions in Valentine v. Lunt (115 N. Y. 496); Valentine v. Austin (124 id. 400), and McNeil v. Jordan (28 Kans. 7) were based upon the same general principle. Since the plaintiff here did not “ clothe the grantee with the apparent title and possession,” there is no ground of estoppel created against her.
Plaintiff’s counsel insists that the mortgagee defendants were put upon inquiry, and chargeable with constructive notice of her title, by reason of the fact of her continuance in possession of the premises after the making of the pretended deed, and at the time of the execution of the mortgages by the supposed grantee.. It appears that her name, in large letters, was on the front door and upon the horse block at the curbstone; conspicuously displayed for the information of any one having occasion to view the premises. But the plaintiff, her daughter (the grantee), and son-in-law all lived together as one household. Defendants contend that the doctrine of constructive notice is inapplicable, for the reason that plaintiff’s possession was equivocal and consistent with the title of the apparent record owner, and the latter, having been in possession of the property, strangers had the right to assume that possession was in accord
Counsel for plaintiff cites Phelan v. Brady (119 N. Y. 587) and Boyer v. Chandler (160 Ill. 394; 32 Law. Rep. Ann. 113).
The proposition stated by the appellants appears to be sound, but it is immaterial in view of our assumption that the defendants are Toonafide mortgagees without notice.
Appellants insist that the gist of the cause of action set forth in the complaint is forgery o.f the plaintiff’s signature, and .as there was a failure of proof as to that allegation the complaint should have been dismissed. The complaint alleges that the plaintiff never executed the instrument nor acknowledged it, nor ever saw it or heard of it until several years after its date; that i't is absolutely fraudiilent and fictitious ; that the pretended certificate of acknowledgment was false; that the grantee, for several years after its date, knew nothing of it and had never heard of it; that it was falsely contrived, and that plaintiff’s signature was forged by Dorthy. Where the allegation to which the proof is directed is unproved, not in some particular or particulars only, but in- its entire scope and meaning, it is not a case of variance, but a failure óf proof. (Code Civ. Proc. § 541.)
ITere there was-no failure to ¡Drove the cause of action in its entire scope and meaning, but simply a failure of proof as to one of the particulars upon which it is based. Striking out that particular a cause of action remains upon the other grounds stated, viz., that the plaintiff never “ executed,” delivered or acknowledged the instrument as her act and deed. An inability to prove to the satisfaction of the court that the signature was a forgery should not preclude proof of the .other allegations. The foundation of the plaintiff’s. claim is,, that the paper was not her deed and never had any legal inception or effect, and in support of it certain particulars are alleged. The defendant mortgagees parted with value, not upon the signature, but upon the faith of the certificate of acknowledgment that she “ executed ” the instrument, which was false. No reliance, was placed upon the signature independent of the certificate; .and assuming its genuineness to be established by the expert testimony,
An examination of the exceptions taken by defendant on the trial presents no error calling for a reversal of the judgment.
The judgment should be affirmed, with costs.
All concurred. ,
Judgment affirmed, with costs.