158 Ky. 126 | Ky. Ct. App. | 1914
Opinion of the Court by
Reversing.
On August 3, 1901, a deed purporting to he signed and acknowledged by Alex Stephens and Angeline Stephens, his wife, was delivered to Eli Stephens. This deed was recorded in the Floyd County Clerk’s office, but the signatures of the grantors were omitted. Subsequently Eli Stephens, son of W. D. Stephens, conveyed his own interest and the interest acquired by the aforesaid deed from Alex Stephens andi wife to B. L. C. May. Alleging that the deed of August 3, 1901, to Eli Stephens was a forgery, A. L. Stephens brought this action against Eli Stephens and B. L. C. May to have the deed canceled, and to recover the land purporting to be conveyed thereby. Afterwards Angeline Stephens, wife of A. L. Stephens, was made a party plaintiff. The chancellor refused to grant them the relief prayed for, and' they appeal.
It appears that Eli Stephens entered into an agreement with B. L. C. May, by which he agreed to sell to the latter his own interest in his father’s estate, and also the interest of A. L. Stephens, provided he could purchase it. He claims to have had some correspondence with A. L. Stephens, and that A. L. Stephens agreed to make a conveyance for the sum of $50. The money was sent in an envelope addressed: to A. L. Stephens at Henrietta, Oklahoma. Thereafter a return card purporting to be signed by A. L. Stephens was. received. This was soon followed by the deed of August 3, 1901. Thereupon Eli Stephens conveyed his own and the interest thus purchased to May, for the sum of $185 cash.
Both A. L. Stephens and his wife, Angeline Stephens, left Kentucky in the year 1889, and since that time have resided in Indian Territory and Oklahoma. On August 3, 1901, the date of the deed in controversy, they lived in the country, near Henrietta, Oklahoma Territory.
For defendants B. L. C. May testified that he was well acquainted with the handwriting of A. L. Stephens, and in his opinion the signature in the deed was in his handwriting. His brother testifies to the sending of the money and to. the fact that he changed the description in the deed, before the deed was sent, by writing the word “our” over the word “my,” which he first wrote because he overlooked the fact that Alex Stephens was married. Eli Stephens testifies that he received four or five letters from his brother Alex in regard to the sale of the land. In his opinion, these letters were in his brother’s hand
Defendant insists that this is a case where the evidence is conflicting and upon a consideration of the whole case the mind is left in doubt, and that therefore the judgment of the chancellor should be affirmed. "While it is true that where a ease turns on a question of fact, the rule above announced is frequently applied, yet we have often held that where the testimony preponderates on one side or the other in such a way as to convince the court that the chancellor has erred, his judgment will be reversed. Bullock v. Harrison, 145 Ky., 358; Coomes Bros. v. Grigsby, &c., 151 Ky., 394. In this ease it is practically admitted — or, at any rate, the evidence conclusively shows — that the certificate, so far as Angelin© Stephens is concerned, is forged. A. L. Stephens says that he never signed or acknowledged the deed in controversy. Nor did he receive the purchase money. The signature on the deed appears to be but a feeble imitation of his real signature. A number of witnesses testify that it is not in his handwriting. The notary is positive that plaintiff is not the man who presented the deed to him for acknowledgment. Though we should make due allowance for this statement because of the time that has elapsed, and the further fact that it is contrary to the certificate of the notary, yet his recollection in the matter is certainly entitled to some weight. On the other hand the testimony for the 'defendants is that the handwriting is that of plaintiffs. However, it is apparent from
Judgment reversed and cause remanded with directions to enter judgment in conformity to this opinion.