81 Kan. 76 | Kan. | 1909
The opinion of the court was delivered by
The plaintiffs’ main contention is that as to innocent purchasers the certificate of acknowledgment of an instrument regular on its face can not be impeached by the uncorroboratéd testimony of the interested parties. The rule contended for may obtain in a certain class of cases in those states where the act of acknowledgment is regarded as judicial, but manifestly such a rule has no place in Kansas.- In this state the person taking the acknowledgment acts in a ministerial, and not in a judicial, capacity. (Heaton v. Bank, 59 Kan. 281, 289.) Even in those states where the certificate is held to be conclusive of every fact appearing on the face of the certificate which the officer is by law authorized to certify, and where it is held that evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate except in case of fraud or imposition, the cer
In volume 1 of the Cyclopedia of Law and Procedure, at page 622, it is said:
“Where, in fact, the grantor has never appeared before the officer and acknowledged the instrument, evidence to show that the certificate, though regular on its face, is a forgery or an entire fabrication of the officer is admissible, even as against an innocent purchaser for value and without notice.”
While the certificate of acknowledgment is entitled to a strong' presumption in favor of its truth, in this state it is only prima facie evidence of the execution of the instrument. (Wilkins v. Moore, 20 Kan. 538; Heil v. Redden, 45 Kan. 562; Heaton v. Bank, 59 Kan. 281.) The following language from the opinion by Mr. Justice Brewer in Wilkins v. Moore, supra, while dictum in that case, is undoubtedly a correct statement of the law: “Of course, the matter is still open for further testimony, either written or oral, for the acknowledgment is not conclusive evidence.” (Page 540.) In section 534 of volume 1 of the second edition of Devlin on Deeds it is said:
“The certificate standing by itself, without other proof, is prima facie evidence of all that it rightfully contains. While not conclusive, it is entitled to the utmost consideration.”
With respect to the character of proof necessary to overcome the certificate of an acknowledging officer, where the parties have actually appeared and signed an instrument and afterward attempt to contradict the certificate as to what took place, the rule is that the
“The testimony of parties to the suit, while carefully scrutinized, is admissible to impeach the certificate and is entitled to the same weight as that of any other interested witness.”
Moreover, the testimony of Mrs. Fletcher was not wholly uncorroborated. There were circumstances in connection with it which may have had more or less weight with the court in determining its truth. The husband testified that she was not present when he signed the lease. The original instrument was in evidence and compared with her own signature, and there was a variance in the spelling of her name as it was written in different parts of the instrument and the acknowledgment.
On the trial the court called a jury in an advisory capacity and submitted to them certain special questions, and gave- an instruction that the burden was on the plaintiffs to prove the due execution of the lease by the fair weight and preponderance of the evidence. It is claimed that this was error and that the court evi
We have carefully examined the claim of error in the admission of evidence and find nothing which would warrant a reversal. The questions objected to were proper, cross-examination.
It is quite apparent that the court attached considerable importance to the defense that the lease was altered after it was signed and acknowledged. Five of the six questions submitted to the jury hinged upon the fact of alteration, and the court adopted the findings,' which were all against the plaintiffs on that issue, which was wholly immaterial if the plaintiffs’ contentions are correct as to the law in' respect to the alteration of written instruments. If it were necessary to decide the question, we- would be inclined to hold with the plaintiffs that since Joseph Fletcher testified that it was his intention at the time he executed the lease, and also the intention of the notary, to have the lease cover the northwest quarter of section 20, and it appeared beyond question that the figure 4 in the typewritten lease was the result of a mere typographical error, the alteration was not such a one as would
There are reasons, however, which render it unnecessary to consider or determine what kind of alterations will avoid a written 'instrument of this character. Irrespective of whether the Fletchers were either or both of them bound by the lease, there still remained the other defense that the plaintiffs had failed to comply with its terms. . They admitted their failure to comply within the time stipulated and sought to avoid the effect thereof by showing facts constituting a waiver and estoppel on the part of the Fletchers. This raised an issue of fact, upon which the evidence was conflicting, the Fletchers contending that they used the gas, not with the intent to ratify the lease, but relying upon the promises of the plaintiffs to have a new and satisfactory léase executed.
The court found all the issues in favor of the defendants. If there had been a special finding in favor of the plaintiffs on the question of estoppel, the general finding would have been narrowed down so as to appear conclusively to rest on the defense of alteration. But there is no special finding on that issue, and the plaintiffs neglected to ask the court to make further findings or to modify those made. They are therefore bound by the findings which the court did make. (Cowling v. Greenleaf, 33 Kan. 570; Shuler v. Lashhorn, 67 Kan. 694.) There was evidence sufficient to support a finding that the Fletchers were not estopped, and a finding to this effect is necessarily included in the general finding of the court, from which there is no escape for the plaintiffs.
The judgment is affirmed.