Nahe v. Bauer

125 N.Y.S. 592 | N.Y. App. Div. | 1910

Thomas, J.:

Mrs. Fint, a surviving trustee under a will,' held two bonds and mortgages for Louise E. Hahe, and the plaintiff succeeding to the latter’s interest seeks in this and another similar action to foreclose them, and to cancel assignments thereof to Remsen, and later assignments through which Rhinehart claims title to them. Mrs. Fint had intrusted the securities- to Roélir, who was her own and'the lawyer for the estate, and by his act they were assigned to Remsen, and by the act of both and to pay their debt to Rhinehart they were assigned to .the Montauk Brewery Company. Rhinehart’s history of the transaction is as follows: “ Mr. Roehr was indebted to the Montauk Brewing Company in the sum of $'6,800. Mr. Roehr and Mr. Remsen were indebted to the Montauk Brewing Company to the extent of $6,800. They were transferred, or left with the Montauk Brewing Company, and transferred .to the’ American Malting Company in payment of a' debt that the Montauk Brewing Company then owed to them, as collateral security upon a note made on . the 4th or 5th of February, for four months, payable on the 5tli of June, 1907; and when that note came .due the corporation hadn’t the ffunds, and I-paid the amount of . the note of $6,000 and took an assignment of these mortgages.. I personally paid the debt of the Montauk Brewing Company and took over the collateral which they had. I did that to protect my interest in the Montauk Brewing Company. At the time when I paid my money to the American Malting Company and became the person invested with these mortgages, I had no notice of any alleged difficulty in the title to these mortgages — none whatever. We had been paid the interest in June of 1907 by the owners of the property —- Mr. Bauer and Mr. Gampert.” The assignments dated and acknowledged July 17, 1906, before Boehr, recite suitable consideration and are signed Her • , “ Mary ^ Fint, (l. s.), Trustee.” Bemsen, disclaiming that he is a “ moneyed man,” makes no. pretense of having purchased the mortgages. His evidence shows that he first saw the assignments in the hands of Boehr; that he had no connection with their preparation, no contract to purchase them, and that, although he paid nothing for them, they were assigned to him in connection with, the contract for the purchase of the stock of the brewery from Bhinehart and another, to which Bemsen was a party and in which Boehr was personally and actively interested. Now, it is clear that for such purpose Boehr, since absconded, stole the securities, forged the assignments and falsely certified the acknowledgments. The trustee died before the actions were brought. She could read and write, and, although ill during the summer of 1906 and so incapacitated for business that she gave her daughter power of attorney, yet there is no evidence whatever that she was disabled from writing her name, and there is abundant evidence that she was not- in Kings county, where the venue of the acknowledgments is laid,during the summer of 1906, but was confined to her bed or house by sickness in the county of Queens. Moreover, Boehr was not seen at her house during that summer by her daughters who lived with her, nor by those in attendance upon her. There is no évidence whatever that the trustee executed the assignments except the certificates of Boehr to the acknowledgment, and there is no evidence of sale unless it may be found in the testimony of Gampert and Bauer, who were interested in the payment of the mortgages. These men, after interview with and at the suggestion of Bhinehart, called in company upon Mrs. Fint. One engaged tlie mother and the other the daughter in conversátion as they state. • But from Bauer’s evidence it is perfectly clear that neither Mrs. Fint nor her .daughter knew anything of the assignments or of Bemsen. Gampert’s statement is1 that he said to Mrs. Fint, “ I see yon sold the mortgage,” and that she answered, “ Tes,” and thereupon he proceeds to describe. Bauer’s interview with the daughter as follows: Bauer asked, ■“ Do you know who bought the mortgage ? ” and she answered, “No,” whereupon Bauer said, “A man named Bemsen bought it,” to which'the daughter replied, “I will find out for you, if it is so or .not.” Nothing further was heard from'the. mother or daughter. The daughter states that such conversation did not take place. How could a trustee, not. permitted to sell except for proper consideration, states that she had sold when she had.not? It is certain that there had been no sale, and is incredible that' she admitted that there had been. Bemsen denies that he purchased, He was the' mere assignee named in the forged assignments, prepared by 'a lawyer recreant to. his client, who stupidly and wickedly signed by’means of a mark, the name of a woman' who could read and' write, and' falsely certified the acknowledgment in the county where she was not and where she was disabled by sickness from-coming. Now it" is not conceivable that under such circumstances the trustee could have acknowledged -to Gam-pert that she had sold the mortgages, and the grounds of disbelief are strengthened by the ignorance of the whole matter revealed in the evidence of Bhinehárt’s envoys. The law gives great evidentiary force to the certificate of a notary. It is well that persons purchasing in reliance upon the genuineness of an official- certificate to the instrument of conveyance or transfer should have great protection.' But it is also equally important that the owners of property should not find themselves deprived of it by its appropriation to the payment of the debt of the notary making the certificate in the manner that appears in the present case. " ■ ' •

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Woodwabd, Bioh and Cabe, JJ., concurred; Jems, J., dissented.

Judgment reversed and new trial granted, costs to abide the final award of costs. . . '