The Chancellor.
Upon the questions of law which arose upon the trial of the issues in this case, I do not think there was any error in the decisions of the circuit judge which would justify this court in granting a new trial. The certificate of the clerk of the supreme court was not evidence of the existence of judgments against. Russell. It is true, such a certificate is by statute made evidence of a judgment, under the redemption law; and perhaps in some other cases specially provided for. But, independent of any statutory provision, the proper way to prove the existence of a judgment is by the production of the record itself, or an exemplification thereof, or a sworn copy.
The statement of Russell’s indebtedness to his father-in-law, made out in. the hand:writing of one of the complainants, was properly excluded as evidence against the defendants. There [336]*336was nothing to show that it was made out at the time the Salem farm was conveyed by Russell in 1820, or that it was in existence previous to the controversy between these parties.
Nor was the endorsement or memorandum upon the Sturges note any evidence, as against the defendants, of the fact stated therein. Certainly in a controversy between Russell and his father-in-law, in relation to the amount of the indebtedness of the former, the latter could not make his own memorandum evidence against the adverse party. And if the testator himself could not have used it as evidence, in a suit instituted by himself to set aside these deeds as obtained from him by fraud and imposition, his devisees cannot use it as evidence, in a suit brought by them, for the same purpose, after his death.
I think the judge erred in intimating so strongly to the jury that in his opinion no skill could enable an expert to distinguish between the mark of. an old man and that of a young one And if the decision of this cause turned upon the question whether the marks upon the deeds in controversy were made by the unaided hand of C. Lansing, in the situation in which he is proved to have been in November, 1841, I should feel bound to grant a new trial; upon the ground that these remarks of the judge had misled the jury. I think the testimony of the experts, who had been in the habit of examining signatures and marks of young persons as well as of very aged ones, to prove that the marks to these deeds could not have been the genuine marks of the unaided hand of old age and decrepitude, was properly received, upon the trial, as legal evidence to establish that fact. Those who have seen the genuine signature of the patriot Stephen Hopkins, upon the declaration of our independence, and have compared it with Benjamin 0. Tyler’s admirable fac simile of the signatures to that instrument, can see at once" that the hand of age and disease may be successfully imitated by one in the prime of life and in the full possession of his muscular powers. But the venerable patriot whose head and whose heart were still strong and sound, although his hand trembled from age and disease, could not have imitated, successfully, the natural signature of B. 0. Tyler. And upon ex[337]*337amining the marks to these deeds, with a microscope, and comparing them with the marks of Mr. Lansing to other papers made about the same time, any one who has ever turned his attention to such subjects will be satisfied that the marks to these deeds could not have been made by his unaided hand. This part of the charge of the judge, however, becomes unimportant, when taken in connection with the testimony of the subscribing witness to,the deeds. For he swears that the marks were made by his father’s assistance in guiding the hand of the grantor, and at the request of the latter. It is a very common thing, in such cases, for the party who is to execute an instrument as a marksman, merely to touch the pen, while the mark is really made by the hand that controls and guides the pen. If that was the case here, it would have been perfectly natural for Mr. Russell to try to make the mark so as to resemble that made by the trembling hand of an aged person. And if so, the mark itself would probably exhibit the regular rolling curves which the microscope shows to exist in the marks to both of these deeds.
The remarks of the judge that the answer of Mr. Russell, denying that he guided the hand of the grantor in the deeds, was in response to the charge, in the bill, that Mr. Lansing’s hand was forcibly guided, and was not the vital question in the cause, could not have been intended, by the judge, to convey an intimation to the jury that 'the charge made in the bill was not vital. For the charge was, in substance, that the hand of the grantor was forcibly guided, so as to compel him to make the marks against his will; which would have been a forgery as well as a fraud. But the judge undoubtedly intended to tell the jury that it was not the vital question in the cause whether the hand of Mr. Lansing was guided by Mr. Russell in making the marks; that the vital question, and the one which was intended to be denied in the answer, was whether the hand of the grantor was forcibly guided.
The remaining question to be considered is whether the verdict, upon any or all of these issues, is so much against the evidence as to make it proper to award a new trial on that [338]*338ground. And here, instead of examining the testimony at length, I shall merely state the conclusions at which I have arrived. In the first place, I am satisfied that the grantor in the deeds was not technically of unsound mind, so as to be mentally incapable of making a valid deed. The acts of some of the complainants show that they did not consider him as non compos mentis. The verdict upon the first issue, therefore, was not against the weight of evidence. I have also arrived at the conclusion that the subscribing Witness to the deeds has testified honestly, and has neither been guilty of forgery nor of perjury. He is not impeached, nor is his testimony contradicted, in any essential particular, so as to render it necessary for the court to Conclude that either he or the witnesses on the other side have intentionally perverted the truth ; though the particular circumstances have been mis'récollectéd by one or the other of them. The story told by him is not inconsistent with probability. The jury, therefore, were not botind to believe that his testimony was false, It necessarily follows from the conclusion at which I have arrived as to his testimony, that these conveyances were not forgeries, but that the marks of the grantor were put to them With his concurrence or assent; although he may have entirely misapprehended the actual meaning and effect of’ one or both of the deeds. And in coming to this conclusion, I lay out of question the testimony of Solomon Russell as to his conversation with Mr. Lansing after the date of these deeds. For his testimony is contradicted by a witness who swears that Russell could not have seen the old gentleman, só as to have had a conversation with him, at the time stated.
I am also satisfied, from the evidence, that the Salem farm was intended to be held, by C. Lansing, only as a security for the advances made to, and the responsibilities which he had assumed for, Mr. Russell. And upon the trial tif this issue it was competent to prove that the deed was in equity a mortgage merely; though at law it vested the title to the farm in the gvahtée. From the evidence I conclude also that the state of -the accounts between the parties was such that Mrs. Rlt'sséll, [339]
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The Chancellor.
Upon the questions of law which arose upon the trial of the issues in this case, I do not think there was any error in the decisions of the circuit judge which would justify this court in granting a new trial. The certificate of the clerk of the supreme court was not evidence of the existence of judgments against. Russell. It is true, such a certificate is by statute made evidence of a judgment, under the redemption law; and perhaps in some other cases specially provided for. But, independent of any statutory provision, the proper way to prove the existence of a judgment is by the production of the record itself, or an exemplification thereof, or a sworn copy.
The statement of Russell’s indebtedness to his father-in-law, made out in. the hand:writing of one of the complainants, was properly excluded as evidence against the defendants. There [336]*336was nothing to show that it was made out at the time the Salem farm was conveyed by Russell in 1820, or that it was in existence previous to the controversy between these parties.
Nor was the endorsement or memorandum upon the Sturges note any evidence, as against the defendants, of the fact stated therein. Certainly in a controversy between Russell and his father-in-law, in relation to the amount of the indebtedness of the former, the latter could not make his own memorandum evidence against the adverse party. And if the testator himself could not have used it as evidence, in a suit instituted by himself to set aside these deeds as obtained from him by fraud and imposition, his devisees cannot use it as evidence, in a suit brought by them, for the same purpose, after his death.
I think the judge erred in intimating so strongly to the jury that in his opinion no skill could enable an expert to distinguish between the mark of. an old man and that of a young one And if the decision of this cause turned upon the question whether the marks upon the deeds in controversy were made by the unaided hand of C. Lansing, in the situation in which he is proved to have been in November, 1841, I should feel bound to grant a new trial; upon the ground that these remarks of the judge had misled the jury. I think the testimony of the experts, who had been in the habit of examining signatures and marks of young persons as well as of very aged ones, to prove that the marks to these deeds could not have been the genuine marks of the unaided hand of old age and decrepitude, was properly received, upon the trial, as legal evidence to establish that fact. Those who have seen the genuine signature of the patriot Stephen Hopkins, upon the declaration of our independence, and have compared it with Benjamin 0. Tyler’s admirable fac simile of the signatures to that instrument, can see at once" that the hand of age and disease may be successfully imitated by one in the prime of life and in the full possession of his muscular powers. But the venerable patriot whose head and whose heart were still strong and sound, although his hand trembled from age and disease, could not have imitated, successfully, the natural signature of B. 0. Tyler. And upon ex[337]*337amining the marks to these deeds, with a microscope, and comparing them with the marks of Mr. Lansing to other papers made about the same time, any one who has ever turned his attention to such subjects will be satisfied that the marks to these deeds could not have been made by his unaided hand. This part of the charge of the judge, however, becomes unimportant, when taken in connection with the testimony of the subscribing witness to,the deeds. For he swears that the marks were made by his father’s assistance in guiding the hand of the grantor, and at the request of the latter. It is a very common thing, in such cases, for the party who is to execute an instrument as a marksman, merely to touch the pen, while the mark is really made by the hand that controls and guides the pen. If that was the case here, it would have been perfectly natural for Mr. Russell to try to make the mark so as to resemble that made by the trembling hand of an aged person. And if so, the mark itself would probably exhibit the regular rolling curves which the microscope shows to exist in the marks to both of these deeds.
The remarks of the judge that the answer of Mr. Russell, denying that he guided the hand of the grantor in the deeds, was in response to the charge, in the bill, that Mr. Lansing’s hand was forcibly guided, and was not the vital question in the cause, could not have been intended, by the judge, to convey an intimation to the jury that 'the charge made in the bill was not vital. For the charge was, in substance, that the hand of the grantor was forcibly guided, so as to compel him to make the marks against his will; which would have been a forgery as well as a fraud. But the judge undoubtedly intended to tell the jury that it was not the vital question in the cause whether the hand of Mr. Lansing was guided by Mr. Russell in making the marks; that the vital question, and the one which was intended to be denied in the answer, was whether the hand of the grantor was forcibly guided.
The remaining question to be considered is whether the verdict, upon any or all of these issues, is so much against the evidence as to make it proper to award a new trial on that [338]*338ground. And here, instead of examining the testimony at length, I shall merely state the conclusions at which I have arrived. In the first place, I am satisfied that the grantor in the deeds was not technically of unsound mind, so as to be mentally incapable of making a valid deed. The acts of some of the complainants show that they did not consider him as non compos mentis. The verdict upon the first issue, therefore, was not against the weight of evidence. I have also arrived at the conclusion that the subscribing Witness to the deeds has testified honestly, and has neither been guilty of forgery nor of perjury. He is not impeached, nor is his testimony contradicted, in any essential particular, so as to render it necessary for the court to Conclude that either he or the witnesses on the other side have intentionally perverted the truth ; though the particular circumstances have been mis'récollectéd by one or the other of them. The story told by him is not inconsistent with probability. The jury, therefore, were not botind to believe that his testimony was false, It necessarily follows from the conclusion at which I have arrived as to his testimony, that these conveyances were not forgeries, but that the marks of the grantor were put to them With his concurrence or assent; although he may have entirely misapprehended the actual meaning and effect of’ one or both of the deeds. And in coming to this conclusion, I lay out of question the testimony of Solomon Russell as to his conversation with Mr. Lansing after the date of these deeds. For his testimony is contradicted by a witness who swears that Russell could not have seen the old gentleman, só as to have had a conversation with him, at the time stated.
I am also satisfied, from the evidence, that the Salem farm was intended to be held, by C. Lansing, only as a security for the advances made to, and the responsibilities which he had assumed for, Mr. Russell. And upon the trial tif this issue it was competent to prove that the deed was in equity a mortgage merely; though at law it vested the title to the farm in the gvahtée. From the evidence I conclude also that the state of -the accounts between the parties was such that Mrs. Rlt'sséll, [339]*339and her husband and children, would not have been put upon a footing of equality with the other branches of her father’s family if her father had retained the Salem farm and had also charged her ten thousand dollars for his advances. On the other hand, I am satisfied from the evidence that P. Russell had-not paid the whole amount of the advances and responsibilities, which Lansing had made and assumed for him, at the time of the giving of the receipt or agreement, of 1837, to reconvey the Salem farm. I think the proof shows that something like $10,000, including interest, must then have been due; and that equality between the different branches of the family would not be produced by conveying the Salem farm to Mr. Russell, and the homestead of her father to Mrs. Russell. Such equality would probably have been produced if the Salem farm had been reconveyed to Mr. Russell and the will had remained as .it was; leaving the homestead to be divided among all of the eight children of Mr. Lansing, and their descendants.
The receipt which was given in the fall of 1837, subsequent to the making of the will, and after its contents were, known, strengthens this supposition. By that will Mrs. Russell’s eighth of the testator’s property was charged with $10,000 .of the ad-van ces made and responsibilities assumed for her husband. It would therefore be perfectly natural, as well as reasonable, for Mr. Russell to say to his. father-in-law, “You .have already charged my wife with $10,000 of my indebtedness, -by your will. Now give me a writing that upon my paying to you the balance, beyond the $10,000, .you wilLrecon-vey tome the Salem farm; and let the will stand as it is.” And if the balance then due was but $500, which lit probably was, it would have-been almost .a matter of course for the old gentleman to -have .given such a.receipt, if he had made up bis mind not to interfere with the provisions of the will. The testimony of Yan Schoonhoven corroborates -this view of the case. Por the application to him, by Russell, -was to get bim to persuade the old gentleman .to convey the.Salem farm; not to ask him to alterthis will. And if Mr. Lansing had .already ¡adjusted the balance in .this way, [340]*340and made it all right by giving his son-in-law a written agreement to reconvey the Salem farm when the balance beyond the $10,000 was paid, his answer to the application of Van Schoonhoven was perfectly sensible and proper. How or when the $500., stated in the receipt as the balance to be paid, was discharged, does not appear from the testimony; though Solomon Russell says Mr. Lansing told him it was paid. It is probable, therefore, that the deed of the Salem farm was under standingly executed, and ought not to be disturbed.
The other deed, which professes to be given to make Mrs. Russell equal with the other children, and without any othei consideration of value; cannot be sustained if she had already been made equal by the agreement to reconvey the Salem farm; leaving unpaid $10,000 of the advances. And under the circumstances, and considering the situation in which Mr. Lan sing was when it was executed, I think the defendants were bound to show how the shares of the estate were to be made equal, among the several children, by the giving of this deed No explanation on this subject was given at the time the deeds were executed. But I can imagine that it would have been made equal if the very strange covenant, at the close of this deed to Mrs. Russell, had been a condition that the grantee should pay to the executors $10,000, out of her share of the estate, for this homestead; thereby making her property equal in amount with the other children. This is the part of the deed that the old gentleman wanted read again. And his deafness and infirmities were such that I cannot believe he finally understood the effect of it to be what it now is.
Believing, as I do, that the grantor could not have understood the effect of this deed upon the division of his property,' and the defendants having failed to prove that all the grantor’s advances had been paid, so that this deed would equalize the shares of his estate between the grantee and the other members of the family, I must direct a "new trial of this case, so far as relates to the deed of the homestead farm to Mrs. Russell, unless the defendants D. Russell and wife, within thirty days after the entry of the order upon this decision, deliver to the [341]*341solicitor of the complainants a stipulation that a decree may be entered setting aside the deed to Mrs. Russell, without costs to either party, as against the other, in this suit. If such a stipulation is not given, there must be a new trial; at the circuit to be held in the county of Saratoga. And the costs of this application, in that event, are to abide the result of the suit