Ford v. Ford

27 App. D.C. 401, 1906 U.S. App. LEXIS 5184

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 1, 1906
• Docket: No. 1606
• Status: Published

Opinion

Mr. Justice McComas

delivered the opinion of the Court:

We have stated with precision and fullness all of the testimony in this case as it appears from the record, because in our opinion the evidence was legally insufficient to support the verdict for the plaintiff below. The plaintiff’s right to recover is grounded upon the claim that his signature to the deed was a forgery, and that the acknowledgment was false and fraudulent, and that the appellee was absolutely ignorant of the execution and acknowledgment and delivery of the deed and ignorant of its existence. From the facts and circumstances of this ease, it follows that his father, Herbert Ford, grantor, or the appellee’s witness, Charles B. Church, grantee, or both, were guilty of fraud and forgery if the appellee’s statement be true. The deed itself at the time of its production at the trial was more than thirty years old, and therefore an ancient document. It proved itself. 1 Greenl. Ev. Wigmore’s 16th ed. p. 720.

The appellee offered the original deed in evidence only to attack it, and called the grantee, Charles B. Church, who appears to have been an old man of intelligence and'probity. The appellee who proffered the witness, held him out as such, and his good reputation is not disputed. Church proved that the deed or paper writing itself was in his own handwriting, and that the signatures of the notary to the appellee’s mark and to the certificate of acknowledgment were genuine, and testified to the good reputation of May, the notary, and that he frequently employed him as notary to acknowledge deeds in which Church was concerned; and, speaking after the lapse of thirty-one years, Church, the appellee’s witness,- gave as his best impression that Herbert Ford came to Church desiring to sell the property in controversy so as to make a division with his son, the appellee, Herbert Ford, saying the appellant wanted to buy the property, and that the money used was the appellant’s money in Church’s hands for investment, or money furnished by Mr. Johnson, and, in effect, that he had conveyed the property finally to the appellant; but he cannot recall why he held it so long as trustee.

The testimony of the appellant and of the witness Dudley strongly confirm the statement of Church, the grantee in the disputed deed. The evidence of these three witnesses greatly preponderates over the appellee’s evidence. He alone testified in his behalf. He denied the signature and acknowledgment of the deed and the receipt of the purchase money. The proof is convincing that when he became of age he demanded his share of the lots of which his mother died seised, and persuasive that he received one half of the purchase money in full satisfaction; and it is not disputed that during twenty-eight years thereafter he remained silent and continued silent while his stepmother erected the brick houses and for many years collected the rents from the property in dispute. It is now said that this is accounted for by the survival of his father, the tenant by the curtesy. It is true that the witness Dudley said that after appellee learned that the appellant had purchased the property he often said that he intended to get the property back.

We need not discuss the various questions raised by the assignments of error in this case, nor decide whether or not the validity of this deed can be thus assailed directly in an action of ejectment, nor determine whether the act of a justice or notary in taking and certifying the acknowledgment of the deed is a judicial act or merely ministerial, nor whether such act is a judicial act when the proper official certifies to the acknowledgment of a deed wherein a married woman joined under the statute then requiring a privy examination, acknowledgment, and declaration of a married woman, a statute long in force Iiere and in most of the States, and ministerial only in other cases; nor what rights the appellant had in her own earnings from her separate business as against her husband.

The evidence in this case presents a single question. The appellee here denied all knowledge of this deed, denied he had executed and acknowledged it. Only one circumstance in evidence tended to corroborate his denial. This deed is signed by his mark, and at its date he could read and write. It is not suggested that Herbert Ford, the other grantor, could read and write, and it may be that May, the notary, assumed that the son could not write, and therefore asked both to sign by making a mark, the names of the two grantors being written. These were colored people, and many such were then illiterate. If the name was written by another hand in the presence of the grantor and at his instance or with his assent, it is his act. The disposing capacity, the act of mind, the essential ingredients of the deed, are his; if he then makes the acknowledgment certified by the notary the deed is his deed. See Gardner v. Gardner, 5 Cush. 483, 52 Am. Dec. 740; Northwestern Mut. Ins. Co. v. Nelson, 103 U. S. 544, 547, 26 L. ed. 436, 437; Young v. Duvall, 109 U. S. 573, 577, 27 L. ed. 1036, 1037, 3 Sup. Ct. Rep. 414; Frost v. Deering, 21 Me. 159.

For the purposes of this case, we may accept the views stated in Wharton on Evidence, vol. 2, 3d ed. § 1052: “The true view is, that the certificate of acknowledgment is prima facie proof of the facts it contains, if within the officer’s range, but is open to rebuttal, between the parties, by proof of gross concurrent mistake or fraud. In favor of purchasers for valuable consideration without notice, it is conclusive as to all matters which it .is the duty of the acknowledging officer to certify, if he has jurisdiction. As to all other persons it is open to dispute.”

The evidence, to impeach a deed, must be something more than the mere unsupported denial of a grantor. Chief Justice Breese well says: “The unsupported testimony of a party to a deed, that he did not execute it, shall not prevail over the official certificate of the officer taking the acknowledgment. Public policy, the security of titles, the peace of society, demand such a rule and a strict adherence to it.” Kerr v. Russell, 69 Ill. 669, 18 Am. Rep. 634; Lickmon v. Hardmg, 65 Ill. 505. The expressions of the Supreme Court, although used in relation to deeds wherein married women were parties, state a rule of public policy. In Northwestern Mut. Ins Co. v. Nelson, 103 U. S. 544, 548, 26 L. ed. 436, 438, the court said: “When a deed or mortgage, regular in appearance, and bearing the genuine signature and duly certified acknowledgment of the grantor or mortgagor, is attacked, the evidence to impeach it should be clear and convincing.”

In the case of Howland v. Blake, 97 U. S. 624, 24 L. ed. 1027, the court said: “The burden rests upon the moving party of overcoming the strong presumption arising from the terms of a written instrument. If the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly the intention of the parties. A judgment of the court, a deliberate deed or writing, are of too much solemnity to be brushed away by loose and inconclusive testimony.”

The acknowledgment of a deed can only be impeached for fraud, and the evidence of fraud must be clear and convincing. Russell v. Baptist Theological Union, 73 Ill. 337.

“The mischiefs that would ensue from a different rule could not well be overstated.” Young v. Duvall, 109 U. S. 573, 577, 27 L. ed. 1036, 1038, 3 Sup. Ct. Rep. 414. See Hitz v. denies, 123 U. S. 297, 31 L. ed. 156, 8 Sup. Ct. Rep. 143.

In Maryland, where parol evidence is admitted in a court of law to impeach the execution and acknowledgment of a deed for fraud or forgery (Davis v. Hamblin, 51 Md. 541), the court recognizes that great weight must be given to official acts certifying to the validity of deeds, and in Ramsburg v. Campbell, 55 Md. 231, the court says: “The allegation of the appellant, Sarah, that she never acknowledged the mortgage before Justice Hemmick or any other justice of the peace, involving, as it does, a charge of gross misconduct and criminal violation of-duty on the part of the certifying justice, must be sustained by strong, disinterested, preponderating evidence. 1 Greenl. Ev. 106. The burden of proof is upon the appellant. The justice of the peace is an officer invested with high ministerial and judicial powers, one of the most important of which is the power to take and certify the acknowledgment of deeds and other instruments, upon the validity of which the titles to all real estate and vast amounts of personal property depend. If the verity of their acts can be impeached by the negative testimony of the parties interested to destroy the deed, the most disastrous consequences might ensue.”

And in Missouri, in Springfield Engine & Thresher Co. v. Donovan, 141 Mo. 633, 49 S. W. 500, it is said: “Moreover, extraneous evidence to overcome the certificate of acknowledgment must be strong and convincing, and must satisfy the mind of the court with reasonable certainty. * * * A bare weight or preponderance of the evidence will not do.”

And in Illinois the court held that public policy requires proof full, clear, and convincing to impeach the integrity of the certificate of acknowledgment of a deed. In a case where both grantors swore to the fraud whereby their signatures were obtained, the court held the proof insufficient, saying: “But, as between the immediate parties to the deed, the acknowledgment may be impeached for fraud, collusion, or imposition, but not otherwise; and the evidence, to warrant the cancelation or setting aside of a deed upon the ground that the acknowledgment was obtained through fraud, collusion, or imposition, must, as we have held, hy its completeness and reliable character, fully and clearly satisfy the court that the certificate is untrue and fraudulent.’ Marston v. Brittenham, 76 Ill. 614. And in Lickmon v. Harding, 65 Ill. 505, we held, in the absence of proof of fraud and collusion on the part of the officers taking and certifying the acknowledgment of a deed, the officer’s certificate, in proper form, must prevail over the unsupported testimony of the party grantor that the same was false and forged.” Fitzgerald v. Fitzgerald, 100 Ill. 388.

And again the same court said: “In taking acknowledgments of deeds, mortgages, and other instruments, an officer acts under the sanction of his official oath, and his certificate of official acts, required by-law to be made, ought to be regarded of as high a grade of evidence as testimony given under oath. The officer acting in this case has since died. Although deprived of the testimony of the officer on the witness stand, there remains the presumption that will always be indulged as to the certainty of an officer’s acts done in the capacity in which he is serving. After his death his certificates of official acts must be heard to speak for him; otherwise there would be no security for titles acquired under instruments required by law to be acknowledged before such officers.” Warrick v. Hull, 102 Ill. 283.

In People use of Munson v. Bartels, 138 Ill. 333, 27 N. E. 1091, relied on by the appellee, while the court says that the eases holding the certificates of acknowledgment to be judicial acts were correctly decided, and that a change of the statute respecting the separate examination of a married woman leads that court to determine that such certificates ordinarily are ministerial acts, the case of Lickmon v. Harding, supra, is indorsed, “in so far as it holds that the officer’s certificate, in the absence of fraud and collusion, will prevail over the unsupported testimony of the grantor that the same was false and forged.”

In Ohio, the supreme court describes the precise case now before us on this appeal, saying: “We doubt whether a case can he found where the certificate of the magistrate has been allowed to be impeached, on the ground of fraud, without evidence charging the grantee with notice of the fraud, or the officer taking it with complicity therein.” Baldwin v. Snowden, 11 Ohio St. 212, 78 Am. Dec. 303.

In the case before us the good reputation of May, the notary who certified to the acknowledgment of the deed in this case, was fully proved, and the grantee was produced as a witness by the plaintiff below and testified to the bona fides of the deed and of the whole transaction. There was no evidence whatever suggesting fraud or forgery, except the testimony of the plaintiff below, the appellee here, that he did not sign and acknowledge this deed. The appellee’s evidence, therefore, was legally insufficient to sustain a verdict in his favor. The evidence of the grantee in the disputed deed, and of the appellant, and of the witness Dudley, and the corroborating circumstances to which we have adverted, make a case strongly preponderating against the plaintiff below, and the appellant properly moved the court to instruct the jury to render a verdict in her favor. The court erred when it overruled this motion, and the judgment in this case must be reversed.

We have said it was not necessary here to consider the rights of the appellant, as a married woman, to her earnings. Except when the rights of his creditors are involved, there is no question that at the time Herbert Eord, with his son, conveyed the property in controversy to his wife, the appellant, the husband could convey to Church, trustee, the lots described in the disputed deed, and that Church, trustee, could convey to Mary F. Eord, the wife of Herbert Eord, the same property. The deeds described in the record, but not set out, appear a sufficient conveyance through an intermediary from the husband, Herbert Ford, to his wife, Mary F. Ford; and, since we conclude that the same deed was the valid deed of Joseph C. Ford, the appellee, the appellant is seised in fee of the lots in controversy, and therefore was entitled to ask the court to instruct the jury to return a verdict for the defendant below. The evidence was legally insufficient, and in this case it was insufficient in law because it was insufficient in fact. Metropolitan R. Co. v. Moore, 121 U. S. 570, 30 L. ed. 1025, 7 Sup. Ct. Rep. 1334. And again, the Supreme Court said: “It is the settled law of this court that, when the evidence given at the trial, with all the inferences which the jury could justifiably draw from it, is not sufficient to support a verdict for the plaintiff so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” Schuylkill & D. & R. Improv. Co. v. Munson, 14 Wall. 442, 20 L. ed. 867; Pleasants v. Fant, 22 Wall. 116, 22 L. ed. 780; Herbert v. Butler, 97 U. S. 319, 24 L. ed. 958; Bowditch v. Boston, 101 U. S. 16, 25 L. ed. 980; Griggs v. Houston, 104 U. S. 553, 26 L. ed. 840; Randall v. Baltimore & O. R. Co. 109 U. S. 478, 27 L. ed. 1003, 3 Sup. Ct. Rep. 322; Anderson County v. Beal, 113 U. S. 227, 28 L. ed. 966, 5 Sup. Ct. Rep. 433; Baylis v. Travellers’ Ins. Co. 113 U. S. 316, 28 L. ed. 989, 5 Sup. Ct. Rep. 494; District of Columbia v. Moulton, 182 U. S. 576, 582, 45 L. ed. 1237, 1241, 21 Sup. Ct. Rep. 840.

It was tbe duty of tbe court to grant tbe instruction that tbe jury should return a verdict for tbe defendant.

Tbe judgment below must be reversed witb costs, and tbe cause remanded to tbe Supreme Court of tbe District of Columbia for further proceedings not inconsistent witb this opinion, and it is so ordered. Reversed.