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The plaintiff in this action invoked the jurisdiction of a court of equity to cancel certain instruments purporting to be conveyances of real estate, which she alleges are fictitious and void. It appears from the allegations of the complaint that at the time of the transactions stated therein, and for many years prior thereto, the plaintiff was the owner and in possession of the dwelling house and lot where she resided and still resides. The relief demanded is that three written instruments of record purporting to affect her title to the property be declared void and canceled. It is charged that the three instruments were fictitious and fraudulent. They were described as purporting to be (1) A deed bearing date and purporting to have been executed and acknowledged on the 31st day of October, 1892, and recorded December 12th, 1892, from the plaintiff to her daughter, the defendant Ella M. Dorthy, the wife of the defendant John F. Dorthy.
(2) An instrument purporting to be a mortgage, covering this house and lot, made by the defendant Ella M. Dorthy and her husband to the defendant, the Monroe County Savings Bank, for $5,000, bearing date May 6th, 1893, and recorded May 8th, 1893.
(3) An instrument purporting to be another or second mortgage on the same premises, made by the same parties, bearing date and recorded November 19th, 1894, to the defendant Hiram L. Barker, to secure the payment of $1,300. It is alleged that on the second day of April, 1895, the savings bank commenced an action to foreclose the mortgage first mentioned, in which action a notice of pendency was filed. It does not appear that the plaintiff was made a party to that action.
The present action was commenced about a month after that by the bank, and the plaintiff avers that she never executed or delivered the paper purporting to be a deed to her daughter; that she never acknowledged it, and never saw or heard of it until a few days before she instituted this action. It is further stated that she never knew or heard of the two mortgages above described until the same time, and that the three instruments were absolutely and wholly fictitious and fraudulent.
These vital allegations concerning the execution of the deed, and the execution of the two mortgages, were denied by the answers of the several defendants. The issues in the case, important as they certainly appear to be, were all issues of fact and presented nothing but questions of fact for trial. The decision and findings of the trial court were in favor of the plaintiff, and the three instruments were set aside. It is distinctly found that the plaintiff never executed or acknowledged the deed; that she never knew of its existence until the time above stated; that it was never delivered to her daughter, and that the latter never knew of its existence until the time it was discovered upon record by her mother, the plaintiff, just before the commencement of this action. Moreover, it was found that the certificate of acknowledgment
attached to the instrument first described was false, and that the signature of the notary, though genuine, was obtained in some way not appearing, but without any acknowledgment by the plaintiff to the officer, or any one else. These findings having been unanimously affirmed at the Appellate Division are decisive of this appeal. Even if they were not so well sustained by the proofs in the case as they appear to be, the result, so far as this court is concerned, would necessarily be the same, since we are not permitted to question them, or even look into the evidence upon which they are based. The jurisdiction of this court is limited to questions of law, and in the present case the findings having been affirmed in the court below in a unanimous decision, we must assume that they are sustained by evidence. Since the adoption of the present Constitution the question whether a finding of fact, or a verdict upon issues of fact, is sustained by evidence, though in its very nature one of law, is not reviewable here, when the court below has decided unanimously that the judgment should be sustained. This one question of law has, therefore, in such cases, been withdrawn from the cognizance of this court, as well as all questions of fact. We are not at liberty to disturb a judgment in such a case by giving to the findings of fact a strained or unwarrantable construction, any more than we are to set them aside upon a direct review. We must accept the findings as they are in their fair scope and meaning, without adding to or taking anything from them, and, applying them to the case, the only question that can arise is whether they support the legal conclusions drawn from them by the courts below. These propositions would be quite sufficient to dispose of this case, but nevertheless the learned counsel for the defendants contend that upon these findings the judgment should have been in their favor. It is quite obvious that the argument in support of this contention not only ignores the conclusive character of the findings as made, but assumes other facts by way of defense not found or even alleged. The decision of the courts below was in favor of the plaintiff generally, and, hence, we are bound to assume not only that all
facts alleged by the plaintiff are sustained by evidence, but that all facts alleged by the defendants by way of defense, not found, have been rejected or expressly negatived. The Constitution and the statute which declare that no unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain findings of fact, shall be reviewed in this court, apply not only to the facts affirmatively stated in favor of the successful party, but to those expressly or impliedly negatived against the party appealing. (Szuchy v.Hillside Coal Iron Co., 150 N.Y. 219; Amherst College v.Ritch, 151 N.Y. 282.) It is quite important, therefore, in view of the contention in behalf of the defendants, to state with more particularity just what facts have been found for the plaintiff, and what facts relied upon by the defendants have been negatived.
The most important finding for the plaintiff is the fourth, the first paragraph of which is in the following words: "Fourth. That the plaintiff never executed or acknowledged the said instrument, and never knew of the existence thereof until sometime in the month of April, 1895, when a rumor came to her that such an instrument had been made, which was confirmed by an examination of the record thereof, in the said Monroe county clerk's office, made by her on or about the 23d day of May, 1895. That although the signature affixed to said instrument is genuine, the plaintiff signed her name to the paper upon which said instrument was written without any knowledge or information that the paper was a deed of her said premises, or that it was an instrument which in any manner affected her interest in said premises. The said plaintiff never at any time had any intention of selling, conveying or incumbering her said premises, and her signature to said paper writing purporting to be a deed of her said premises was procured by the defendant John F. Dorthy by some trick or artifice perpetrated by him in some way or manner which does not appear and is unknown to the plaintiff." The finding then proceeds to state: "That said plaintiff never acknowledged the execution of said instrument in
any manner and never appeared before the officer, whose certificate of her acknowledgment is affixed to said instrument, for the purpose of acknowledging the execution thereof. That the signature to said certificate of acknowledgment is genuine, but the same was in some manner obtained by the said defendant John F. Dorthy, in what way does not appear, but without any acknowledgment by the plaintiff to the said officer, and without her authority given in any manner whatever. That said instrument was never delivered to the defendant Ella M. Dorthy, and she never authorized any one to receive the same for her, and no consideration for or on account of said instrument ever passed between the plaintiff and the said defendant Ella M. Dorthy, or between the plaintiff and said defendant John F. Dorthy. The said defendant Ella M. Dorthy never had any knowledge of the existence of the said pretended deed of the plaintiff to her."
It would seem to be a difficult problem which the learned counsel for the defendants have assumed to elucidate, since it is nothing less than an effort to show that their clients, and especially the bank, have become vested with an interest in the plaintiff's real property under what they call a deed, which, it is conclusively settled, the plaintiff never executed, acknowledged or delivered. It must be admitted that to sustain such a position requires both courage and ingenuity, and, accordingly, they have with commendable industry constructed an argument based upon three propositions of fact: (1) That, although the plaintiff never intended to sign a deed, and did not know that she had, her genuine signature appearing on the paper having been procured by some trick or artifice, yet it was the result of negligence on her part. (2) That the defendants holding mortgages are bona fide purchasers without notice or knowledge of the plaintiff's rights. (3) That the plaintiff is estopped by the spurious deed and the false record of the same in the clerk's office from raising any question against the validity of the two mortgages.
The counsel in framing the argument have evidently overlooked or ignored a very important consideration, and that is
that every one of these propositions involved matters of fact, not only not found, but negatived by the decision at the trial, so that the very basis of the whole argument is swept away. There is no finding, and there was no request to find, either that the plaintiff was negligent in placing her signature upon the paper, or that the defendants holding mortgages were bona fide
purchasers without notice of the plaintiff's rights, or that they relied upon or were misled by any act or word on her part. On the contrary, the plaintiff having had judgment in her favor on the whole case, it has been found, impliedly, that she was not negligent; that the defendants are not bona fide holders without notice, and that there was no act or word on her part upon which the defendants relied, and hence no estoppel. These findings having been unanimously affirmed by the court below, it is very difficult to understand how there can be any question of law before us for review. It was never permissible in this court to go behind the findings into the evidence for some fact upon which to base a reversal, and to do it now in this case, after a unanimous decision below, is simply to disregard the Constitution. If we can go into the evidence in such a case for new facts to overthrow or neutralize those found, the purpose of the constitutional provision can always be defeated or evaded.
It is urged that since the court found that the signature of the plaintiff to the instrument was genuine, that she, therefore, signed a deed of her property, and having done that, and the defendants having advanced money on the faith of the false record, are entitled to be protected by a court of equity. The fallacy of the whole argument is found in the assumption that the genuine signature of the plaintiff was made to a deed, whereas the finding is that she never executed, acknowledged, delivered or was aware of the existence of such an instrument; that she never intended to execute a deed, or any other instrument affecting her title to the property. These findings plainly mean that she never signed a deed, since if she did she must have executed it, and the fact that her signature is genuine is entirely consistent with the
previous part of the finding. A party cannot make a deed without some assent of the will. It must be a conscious act, accompanied by an intention, and every one of these elements are wanting in this case as appears from the finding. The genuine signature of a party may be procured by some trick or device to a piece of blank paper, and a deed or other instrument subsequently written over it without his knowledge. It may be that a party could procure another to sign a paper by means of hypnotic suggestions or influences, but a signature procured under such circumstances could have no more effect than if made by the hand of the hypnotiser. It does not follow in such a case that because the signature is genuine that the party signed a deed or other contract. It is simply a spurious paper and of no more effect than any other forgery.
But the argument wholly ignores the other part of the finding, that the instrument was never acknowledged or delivered, and that the grantee named therein was not herself aware of its existence. The act of signing a deed is only one step in the process of changing the title to real property. The instrument is perfected only by delivery, and in this case that most important fact is negatived by the findings. No one can now claim that the grantee in the spurious paper ever received any title whatever under it, and, of course, she could not convey any better title through the mortgage than she had herself, unless some estoppel was established, and none was found. So that, even if the court had found that the plaintiff signed the deed of her house, instead of finding, as it did, that she did not, the other fact, that it was never delivered, would be a complete answer to the argument in support of the mortgages, since they must rest entirely upon the deed.
The learned counsel has cited cases in this court, and in other jurisdictions, which he claims sustain his contention. (Chapman
v. Rose, 56 N.Y. 137; Simpson v. Del Hoyo, 94 N.Y. 189;Vaientine v. Lunt, 115 N.Y. 496; Simson v. Bank ofCommerce, 43 Hun, 156; affirmed, 120 N.Y. 623; Page v.Krekey, 137 N.Y. 307; Lawrence v. G.I. Co., 51 Kan. 222; Gavagan v. Bryant, 83 Ill. 376; Hunter v.Walters, L.R. [11 Eq. Cases] 292; L.R. [7 Ch. App.] 75;Briggs v. Jones, L.R. [10 Eq. Cases] 92; Heyder v. E.B.L.Assn., 42 N.J. Eq. 403.) The distinction between these cases and the one at bar is so broad and so plain that it is difficult to see how it could be supposed that they had any application. In all of them it will be seen that the party sought to be charged consciously and voluntarily executed a contract, obligation or conveyance of some kind or character, and for some purpose. There was an intention to execute, and an actual execution of the instrument, in every case, followed by an actual delivery. There was the assent of the will to the use of the paper or the transfer, as the case may be, though that assent may have been induced by fraud, mistake or misplaced confidence. In such cases when the obligation is put in circulation, or when some instrument which clothes another with the indicia of title to property is used by him, the equities of innocent parties must be considered. But these principles have no application to this case, for the plain reason that, upon the findings, the plaintiff never intended to execute, and did not sign or deliver, any obligation, contract or conveyance whatever. There is absolutely no act of the plaintiff upon which any right or equity can be based in favor of the mortgagees. It is doubtless true that a fraudulent grantee of real property may create a valid incumbrance upon it in favor of innocent parties, since, as to such parties, he has the title and has been clothed with power to deal with the property. When the owner of land executes and delivers to another a deed of it, the title passes to the grantee named therein, although the former was induced by fraud to execute and deliver the instrument. The deed is not void, but voidable, and, until set aside, it has the effect of transferring the title to the fraudulent grantee, and the latter, being thus clothed with all the evidences of good title, may incumber the property to a party who becomes a purchaser in good faith.
But in this case it would be preposterous to assert upon the facts found that the plaintiff's daughter, whose name appears
as grantee in the spurious deed, ever had any title, or that she was ever clothed by any one with the slightest power or authority to mortgage the property. In the face of the findings that the plaintiff never executed, acknowledged or delivered the deed, no one is willing to assert that she ever had any title to convey. That the cases cited have not the slightest application to this case is, therefore, to my mind, a proposition too plain for argument.
Nor is there any basis for the proposition that the plaintiff is estopped from assailing the mortgages, any more than there is for questioning the deed. There was no act or declaration on the part of the plaintiff to create an estoppel. It does not appear that the party who took the mortgages ever saw the genuine signature of the plaintiff, or acted upon it. What they acted upon was a false and fictitious record, which the plaintiff had no hand or part in making. That was made possible only by the genuine signature and false certificate of the acknowledging officer, who, though innocent of any wrong, had been imposed upon, as the officers of the bank were, subsequently. It is manifest that the genuine signature of the plaintiff played no part in the creation of the false record upon the faith of which the defendants loaned their money, since even the notary did not act upon it. No one who had anything to do with the transaction seems to have known or seen the signature, and for all the purposes of the case, in view of the findings, it might as well have been simulated.
The rule that where one of two innocent parties must suffer from a wrong, he must bear the loss whose action enabled the wrong to be done, has no application to the case. In a recent case in this court it was shown that this rule, at best, is one applicable only in peculiar emergencies, and the limitations upon it were very clearly pointed out by Judge FINCH. (Rapps v.Gottlieb, 142 N.Y. 164.) If we were to ask what it was that the plaintiff did to enable the wrong in this case to be committed, it would be difficult for the learned counsel to answer it. The only answer to be found in his argument is that she signed the deed; but it has been shown, I think, that
this proposition has no real foundation, in fact or in law. Moreover, although the plaintiff's signature to the paper is genuine, procured by some trick or artifice, it was never delivered or acknowledged by the plaintiff, and these two acts must be imputed to her before any one can say that she, in any degree, contributed to the success of the fraud. There was no act or declaration on her part that enabled any one to deceive third parties by means of a false record. That record was made by the production of a spurious paper to the notary, who was, in some way and by another trick or artifice, induced to attach his official signature to a false certificate.
It is further found that during all the time covered by these several transactions the plaintiff was in possession of the real property in question. Her name appeared in large letters on the front door and on the horse block in front of it, and while the possession of the plaintiff may have been somewhat obscured by the presence in the house with her of the son-in-law and his wife, this circumstance cannot change the legal effect of possession as notice of her rights to all the world. (Phelan v.Brady, 119 N.Y. 587; Holland v. Brown, 140 N.Y. 344;Kirby v. Tallmadge, 160 U.S. 379.)
I assume that no one will claim that the plaintiff changed or lost the possession of her house when she took in her daughter and son-in-law to live with her. In the case of Mygatt v. Coe
(147 N.Y. 456) we held that the possession of a married woman of her house was not affected by the circumstance that her husband lived with her and attended to the property, including the payment of taxes. Assuming that case to be still law, it is difficult to perceive how the plaintiff's possession was affected by the presence in the house with her of her daughter and her daughter's husband. The possession in fact and in law was still in the plaintiff, and that possession was notice to all the world of her rights. The parties who made loans on the faith of a false record, had they but inquired of the plaintiff all the facts would have been revealed. They all resided in the same city, and all that was necessary for the mortgagees to do in order to defeat the
fraud and save themselves from loss, was to visit the premises and take note of what such a visit would disclose. In omitting such a plain precaution the parties who proposed to loan money to Dorthy on the faith of a fictitious paper title have deprived themselves of the right to say that the plaintiff's genuine signature was the primary cause of their loss. If it be said that the plaintiff was not sufficiently vigilant in guarding against the fraudulent use of her signature by her son-in-law, as a means of depriving her of her property, though that fact is negatived by the findings, it must also be said that the mortgagees were quite as remiss in putting faith in a fictitious record when they could have discovered the fraud about to be practiced upon them by calling at the plaintiff's house. The defendants cannot be heard to claim that they were not bound to make any inquiries of the true owner, while insisting at the same time that she is bound by any trick or artifice by means of which her signature was made to appear on a false paper.
The case has thus far been discussed strictly upon the findings of the trial court, unanimously affirmed on appeal, but the defendants' contention would not be aided much if it is viewed in the broadest aspect, or enlarged by a departure from the findings. I have said that the defendants' claim rests upon a spurious or fabricated paper, but this expression does not describe the true character of the instrument. It was simply a forgery in every legal or moral aspect in which it can be considered. That crime is defined by the common law to be the fraudulent making of a writing to the prejudice of another's rights (4 Black. Com. 247), or the making malo animo of any written instrument for the purpose of fraud and deceit. (2 East P.C. 852.) The false making of an instrument which purports on its face to be good and valid for the purpose for which it was created, with the design to defraud. (1 Leach, 366; Black's Law Dic. 508.) The false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. (2 Bish. Crim.
Law, § 523.) The fraudulent making of an instrument in writing to the prejudice of another's rights. (People v. Cady, 6 Hill, 490; People v. Shall, 9 Cowen, 778; People v. Harrison, 8 Barb. 560; Harris v. People, 9 Barb. 664.) So it is held that forgery may be committed by fraudulently procuring the signature of another to an instrument which he has no intention of signing. (State v. Shurtliff, 18 Me. 368; Gregory v. State,26 Ohio St. 510; Com. v. Foster, 114 Mass. 311.) The true character of the instrument which is the sole basis of the defendants' contention is well illustrated by the case of theState v. Shurtliff (supra). In that case a party agreed with another to sell to him one acre of his farm, and the intended grantee procured a draft of a deed describing the one acre intended to be conveyed, and presented it to the grantor who examined it and found it correct. The execution of this deed was, however, delayed and the draft remained with the grantee, who afterwards fraudulently procured the draft of another deed which covered and described the grantor's whole farm, and presented it to the latter for execution as the deed before examined, and it was executed and delivered. The grantee was convicted of forgery, and upon a review of the case upon appeal the court said: "Forgery has been defined to be a false making, or making maloanimo, of any written instrument for the purpose of fraud and deceit. (2 Russ. 317, and authorities there cited.) The evidence fully justifies the conclusion that the defendant falsely made and prepared the instrument set forth in the indictment, with the evil design of defrauding the party whose deed it purported to be. It is not necessary that the act should be done in whole or in part by the hand of the party charged. It is sufficient if he cause or procure it to be done. The instrument was false. It purported to be the solemn and voluntary act of the grantor, in making a conveyance, to which he had never assented. The whole was done by the hand, or by the procurement, of the defendant. It does not lessen the turpitude of the offense that the party whom he sought to defraud was made in part his voluntary
agent in effecting his purpose. If he had employed any other hand, he would have been responsible for the act. In truth the signature to that false instrument, in a moral and legal point of view, is as much imputable to him as if he had done it with his own hand. The art and management has no tendency to mitigate the charge, and the opinion of the court is, that the crime of forgery has been committed. When the false making, with an evil design, is proved artful subterfuges in defense have been disregarded, of which many of the cases cited for the government are illustrations."
It must be admitted that the case from which this quotation is taken was not nearly so rank in its general features as the case at bar. The grantor in that case intended to execute a deed, and it was executed and delivered, and, moreover, it was not infected, as the instrument in this case is, with the vice of a false certificate of acknowledgment. So that when the instrument under which the defendants now claim was placed among the public records, it was nothing but a forgery. It was not only a forgery at common law, but a forgery by statute. The term "forgery" includes now, as it always did, the false making of a written instrument (Penal Code, § 520), and under section 521 it is forgery to utter or put off as true, with intent to defraud, a forged deed, knowing it to be forged. Placing the so-called deed in this case upon record, with intent to defraud, was an "uttering or putting off as true," within the meaning of the statute. (Paige v. People, 3 Abb. Ct. App. Dec. 439.) Moreover, a false certificate of an acknowledging officer to an instrument purporting to be a deed, that the same was acknowledged by a party thereto, is forgery under section 510 of the Penal Code, and while the absence of knowledge or a criminal intent on the part of the officer would absolve him from liability, yet that circumstance cannot, of course, change the character of the instrument of which the certificate is an essential part, or make it any the less a forgery.
That the certificate attached to the paper in question was false, is not, and cannot be, denied. It is found that the party
to whom the defendants loaned money upon fictitious mortgages procured the officer to make the false certificate by some trick or artifice, and by section 29 of the Penal Code one who directly or indirectly induces or procures another to commit a crime is a principal. (People v. Fitzgerald, 156 N.Y. 253; People v.McKane, 143 N.Y. 455.)
The fact that a false and fabricated writing of this character is deposited in a public office for record, and is actually recorded, can add nothing to its legal efficacy. The Recording Act applies to genuine instruments and not to forged ones. (Albany Co. Savings Bank v. McCarty, 149 N.Y. 71.) It may be that the actual record of such a paper may deceive the unwary, but that circumstance does not change the legal rights of any one. A bank may loan money upon the security of a pledge or mortgage of personal property in the possession of the thief who has stolen it, and the loan may be made in good faith on the honest belief that the thief who has the possession has the title; but this would not prevent the real owner from pursuing his property and taking it wherever he could find it. (Knox v.Eden Musee Co., 148 N.Y. 441.) It would not help the bank in that case to allege, as the defendants in this case allege, that it was a bona fide purchaser. It is legally impossible for any one to become a bona fide purchaser of real estate, or a purchaser at all, from one who never had any title, and that is this case. It is equally impossible to construct an estoppel against the real owner upon a forged instrument, placed upon record without the authority of any one, and, of course, the paper in question was no more entitled to record upon the false certificate than if it contained no certificate whatever. Void things are as no things.
This fabricated writing and false record, it is said, has invested the defendants, holding fictitious mortgages, with the character of bona fide purchasers of real estate, and so has the effect in law of divesting the plaintiff of the title to her house and transferring it to the defendants; or if this proposition should seem to be too drastic, then we are asked to hold that the plaintiff is estopped from raising any question with
respect to the validity of the paper, since she was the involuntary victim of crime. It is said that since some one must suffer it is better that the plaintiff should lose her house than that the bank should lose its money. I have stated at, perhaps, undue length some of the reasons that constrain me to reject the argument. It has always been supposed that real property could not be the subject of larceny, but this is evidently a mistake, if it be true, as the defendants' counsel claims, that the false papers which the judgment in this case has declared void and set aside, are to be given such legal effect as to divest the plaintiff of her property and convey it to the defendants. In that case the process of stealing real estate, if I may be permitted to use that expression, will be very simple and comparatively safe. All that will be necessary for the criminal to do in order to feloniously appropriate to his own use the real property of another, is to fabricate a deed that shall contain the signature of the true owner, genuine if possible, by any trick or artifice, but if not, then simulated, since that will be just as good. The next step will be to procure a notary to attach to it a false certificate that the owner acknowledged it before him, and then file it in the clerk's office. It will not be necessary that the true owner should ever see the paper or deliver it to any one. If the grantee named in this false paper should be able to find a bank or an individual willing to loan money on the faith of such a record as Dorthy did in this case, the theft will be complete, since the title of the true owner will be extinguished by the bona fide intentions of the deluded money lender, or the owner will be estopped by reason of the confidence which it is said may have been reposed in the record of a crime.
The proposition that a person, or a bank, engaged in loaning money, may, if ignorant of the real facts, rely upon a falsehood placed upon record by criminal means, to the prejudice of the rights of the true owner of real estate, must open the door for the destruction of all titles, and make it much easier for the criminal to purloin real than personal
property. It is said that the false deed in this case was duly
recorded, but surely this must be an inadvertence, since it is impossible to conceive that a writing, purporting to be a deed, but never executed, acknowledged or delivered, could be duly recorded. The act of the registrar in copying on his books a forged instrument, deposited with him as part of a criminal scheme, cannot very well be called duly recording a conveyance of land.
So it is said that the presence of the plaintiff's genuine signature on the paper rendered the fraud possible, but this assertion is manifestly without foundation. Even if it could be held that a woman who happens to own a house is bound by her signature to such a paper, by whatever trick or artifice procured, still, since she never delivered the paper, or in any way authorized it to be put in circulation, and as she never acknowledged it so as to entitle it to be recorded, it is very difficult to see what connection her signature has with the acts of the defendants in taking the mortgages from Dorthy. The record found in the clerk's office, upon which the defendants say they relied, was simply the result of a crime, and, if they were deceived by it, there is no principle of law or equity that will permit them to make their loss good from the plaintiff's property. They are the victims of a criminal contrivance in which they put faith, and they must seek redress from the criminal who conceived and executed the fraud.
The judgment of the courts below is right and should be affirmed, with costs.