Birchett v. Bank of Shelbyville

67 S.W. 371, 113 Ky. 135, 1902 Ky. LEXIS 30

• Court: Court of Appeals of Kentucky
• Decided: March 20, 1902
• Status: Published

Opinion

Opinion of tub court by

JUDGE DURELLE

Affirming.

This suit was brought by the Bank of Shelbyville to enforce a mortgage given to secure a. note of May 19, 1897, for $4,000, payable 12 months after date, upon three lots of land in Shelby county, the property of Mrs. Maria Birehett. Her husband, John G. Birehett, was made a party defendant, but was proceeded against by warning order. Both the mortgage and note purported to be signed by both Maria B. Birehett and her husband. Mrs. Birehett answered, pleading non est factum as to both note and mortgage, and. in a second paragraph averring that at the date •of the execution of the note and mortgage she was of unsound mind, and incapable of executing and delivering the same, or of making a contract. By amendment she pleaded that her husband forged her signature to the note, or caused it to be forged by some, one unknown to her; that he fraudulently caused some one else to represent her before the,, county clerk of Fayette county and acknowledge the mortgage and that the certificate of acknowledgment was a mistake of the clerk. The bank amended its petition to conform to the proof, alleging that the $4,000 obtained on the note and mortgage sued on was applied by Mrs. Birchett to her use and benefit, checked out by her by seven checks signed by her, by one of which, for $3,018.60, she paid off and discharged a note and mortgage to the Slielbyviile Trust Company for $3,000 and interest. Mrs. Birchett answered the petition as amended, denying that she executed any of the checks, or got the benefit of any of the money; denied the execution and delivery of the trust company $3,000 mortgage, or that she signed or acknowledged any mortgage before the clerk of the Shelby county court; and averred that, if such mortgage existed, it was procured by fraud practiced upon her in some way unknown to her; that on the date of the execution of the trust company mortgage, April 18, 1896, she was weak in body and mind, having been for many weeks under the influence of morphine, and, by reason of the excessive use of morphine, incapable of making a contract of any character; and that any certificate of any officer certifying that she signed or acknowledged the $3,000 mortgage to the trust company was a mistake. The clerk who took the acknowledgment to the mortgage sued on remembers very little of the transaction, and has no recollection of the appearance of the woman who made the acknowledgment. The clerk who took the acknowledgment to the trust company mortgage of April, 1896, is more definite in his recollection. There is much conflict of testimony as to the handwriting of the various signatures denied by Mrs. Birchett. There is some testimony of acknowledgment of the indebtedness sued on,, and of negotiations to raise a sum of money wherewith to pay off that indebtedness. This testimony is in part denied, and in part attempted to be explained on the theory that the admissions were in regard to a small debt owing to the bank by herself and husband, and that the proposed loan to bo negotiated at another bank was for the purpose of effecting a compromise. Upon the issues thus made up, there was naturally great conflict of testimony. It would be unprofitable to go into an elaborate statement of the testimony upon the various points. Certain genuine signatures of Mrs. Birchett were introduced for the purpose of comparison with the disputed signatures, and the original disputed writings and certain genuine writings have been brought up from the circuit court, to be considered upon this appeal. Upon the issues of fact the chancellor decided in favor of the bank, and, from our examination of the testimony and the original papers before us, we do not feel authorized to reverse his finding.

A question of practice is raised, under the act of May 17, 1886 (Kentucky Statutes, section 16-19), regulating the admission of evidence of disputed handwriting by comparison. Section 3 of the act provides in reference to the introduction of genuine writings for the purpose of comparison: “A party proposing to introduce such writings must give reasonable notice of his intentions to the opposite party or his attorney, with reasonable opportunity to examine them before commencement of the trial.” Notice was given of the taking of depositions about a month prior to the final hearing, and in the notice it was stated: “And to said witness it [the plaintiff] wdll submit for inspection and comparison certain writings and signatures of defendant Maria B. Birchett, and continue until completed.” It is objected that this notice does not state what the writings are which are to bo submitted. Upon the trial of a common-law cause it would, no doubt, be necessary, under this section, to submit the writings for examination a reasonable time before the commencement of the trial. But in the taking of depositions to be used in an equity cause, we think the notice given was sufficient, as it gave notice of the intention to introduce writings for comparison; and the depositions were taken a sufficient length of time before ihe hearing to afford the opposing party and her counsel a reasonable opportunity to examine them before the commencement of the trial.

For the reasons given, the judgment is affirmed.

Petition for rehearing by appellant overruled.