Albany Cnty. Sav. Bank v. McCarty

• Decision Date: 07 April 1896
• Citation: 149 N.Y. 71,43 N.E. 427
• Parties: ALBANY COUNTY SAV. BANK v. McCARTY et al.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 71

43 N.E. 427

ALBANY COUNTY SAV. BANK

v.McCARTY et al.

Court of Appeals of New York.

April 7, 1896.

Appeal from supreme court, general term, Third department.

Action by the Albany County Savings Bank against Thomas McCarty and others to foreclose a mortgage. From an affirmance by the general term (24 N. Y. Supp. 991) of a judgment for plaintiff, defendants appeal. Reversed.

Bartlett, J., dissenting.

Isaac H. Maynard, for appellants.

E. Countryman, for respondent.

VANN, J.

This action was brought to foreclose a mortgage, which, together with the accompanying bond, purports to have been executed on the 25th of April, 1887, by Ellen McCarty, the owner in fee of the lands affected, and by Thomas McCarty, her husband, to secure the payment to the plaintiff of the sum of $8,000, besides interest. On the 11th of May, 1887,-16 days after the alleged execution and delivery of the bond and mortgage,-Ellen McCarty died, intestate, and her husband was subsequently appointed administrator of her estate, but, although made a party to the action, both in his representative capacity and as an individual, he interposed no defense. Five infant children of the decedent appeared by guardian, and served a general answer, while the only remaining child, who was an adult at the time, served a separate answer, denying that said bond and mortgage were executed or delivered by her mother. The referee found in favor of he plaintiff upon the issue thus joined, and the judgment entered on his report has been affirmed by the general term.

The first question presented for review is, whether there was evidence enough to support the findings of the referee, under the rule governing appeals to this court. Upon the trial the plaintiff read in evidence the bond and mortgage, with the certificates of acknowledgment in due form attached, and, without further evidence on the subject of execution, rested its case. The defendants thereupon gave evidence tending to show that Mrs. McCarty neither signed nor executed either instrument. Some facts bearing upon the question in dispute were either found by the referee or are virtually conceded to be true, and among them the following: On the 25th of April, 1887, when the papers purport to have been acknowledged, Mrs. McCarty was afflicted with alcoholic paralysis, which so affected her arms and hands that she could neither hold a pen nor write her name. She was unable to leave her house or room at the time, but was confined to her bed. She did not, in fact, sign either instrument, but her name, as subscribed, is in the handwriting of her husband. Charles J. Krank, a commissioner of deeds, certified to the acknowledgment of both husband and wife. Thomas McCarty, the husband, was at the time somewhat involved financially, but was carrying on business, and for that purpose was using the property, both real and personal, of his wife. He was interested in business ventures with one Shubal Kelly, who, as indorser or surety, had become liable for him to the extent of $13,000. On the same day that the bond and mortgage purport to have been executed, a chattel mortgage appears to have been given by Mr. and Mrs. McCarty to said Kelly, and acknowledged before Mr. Krank. Both names to this instrument were in fact signed by the husband, and the defendants claim that the certificates of the commissioner to all of these papers are false, so far as Mrs. McCarty is concerned.

Mr. McCarty, in the name of his wife, negotiated the loan from the plaintiff, and attended to the execution of the bond and mortgage. He received them in person from the attorney who prepared them, and in person returned them, on the same or the next day, with the signatures and certificates attached, as they appeared on the trial. The plaintiff did not pay over the money until the 7th of May, nor until a power of attorney had been furnished, purporting to have been executed by Mrs. McCarty on that day before David H. Stanwix, as commissioner of deeds, authorizing her husband to act for her in many respects, and, among others, ‘to sign and deliver notes, checks, and drafts; to deposit moneys, and draw the same by check or otherwise, as he shall see fit; also to lease any and all real estate, or interest in real estate of which I am now seised or possessed, or otherwise sell or dispose of the same absolutely in fee simple; * * * to sign, seal, execute, and deliver deeds, conveyances,’ etc. The plaintiff, upon receiving this power of attorney, drew a check on another bank for the amount of the loan, payable to the order of Mrs. McCarty, and delivered it to her husband, who indorsed it in her name as well as his own, and deposited it to his credit in the bank upon which it was drawn. No part of the principal of the mortgage in suit has been paid. The interest was paid to September 1, 1889, the last payment having been received on the 14th of that month; but it did not appear by whom any of said payments were actually made. Mr. Krank, the commissioner who certified the acknowledgments to the bond and mortgage, was called as a witness by the defendants, and testified that he took the acknowledgments at his office upon the day they bear date; that McCarty and Kelly came there, and the former acknowledged both instruments for himself, and took them away, saying they would soon return; that later in the day Kelly returned with a woman, whom he introduced as Mrs. McCarty, and who acknowledged the papers as Mrs. McCarty; that he made the certificates as to her upon that introduction, and that he was never at the residence of Mrs. McCarty. The cross-examination of this witness showed an infirm memory, and the record suggests some temporary disability on his part that caused mental confusion. Contradiction followed contradiction, until the numerous misstatements called for some explanation other than the mere lapse of four years from the date when he acted and the time when he testified. On repeated occasions prior to the one under consideration he had certified to the acknowledgment by Mrs. McCarty of various instruments, some of them signed by her husband in her name and others by her own hand, but none of which appear to have ever been questioned by her. He testified that the same woman acknowledged the bond and mortgage in suit who acknowledged the other instruments. A sister of Mrs. McCarty, who lived in the family as a servant, and spent more or less time in the sick room; a daughter, who was all over the house, attending to household duties; a son, who went to school; another servant, who did the washing and ironing; and the attending physician, who called professionally in the usual way,-gave evidence tending to show that Mrs. McCarty did not leave her room on the 25th of April, 1887, and that Krank did not come to the house on the day. Mr. McCarty testified that he repeatedly signed his wife's name to written instruments, and that he did not go to his house with Krank on the day that the bond and mortgage are alleged to have been acknowledged. Mr. Kelly was dead at the time of the trial. Mr. Stanwix, who certified the power of attorney, when called as a witness by the defendants, testified that he went with Mr. McCarty to his home, and there took the acknowledgment of Mrs. McCarty to that instrument while she was in bed. The paper had previously been signed in Mrs. McCarty's name by her daughter, who did it at the request of her father, Thomas McCarty. Stanwix further testified that he made the mark for Mrs. McCarty, after reaching her room; that he was not prepared to say that he showed the mark to her, but that he did ask her if that was her signature for the purposes therein, and she acquiesced. She said nothing, so far as he could remember, but, as he thought, was conscious enough to recognize what he said. According to his best recollection, he informed her that the paper was a power of attorney, and when he asked her the question as to the signature she nodded her head; ‘that there was a recognition in some way;’ ‘that she kind of recognized what I said,-kind of a move of the head.’ The testimony of this witness was not clear, nor altogether consistent. While he used slight care to learn whether this sick woman consciously and understandingly made the acknowledgment, according to such recollection as he had, if he is to be believed, he told her what the paper was, asked her ‘if that was her signature,’ and she nodded or moved her head in acquiescence. This was four days before Mrs. McCarty died, during which period, as her attending physician testified, she was in a semiconscious state, but ‘could understand a fair question put to her, and could indicate her answer either by ‘Yes' or ‘No,’ or by an act.'

The case of the plaintiff rested substantially upon the official certificates to the bond and mortgage, as corroborated and confirmed by the power of attorney and the certificate thereto, while the defendants' case depended mainly upon the circumstances, conceded, or not disputed, and the oral testimony, already alluded to. Did this state of the evidence present a question of fact for the referee, so that his conclusion is final in this court? The question is not whether the finding is against the weight of evidence, but whether it is without any evidence upon which a finding of fact can reasonably be made in favor of the plaintiff, in view of the evidence presented by the defendants. We are thus brought to consider the effect of certificates of acknowledgment as evidence.

It is provided by the Code of Civil Procedure that ‘a conveyance, acknowledged or proved, and certified in the manner prescribed by law to entitle it to be recorded in the county where it is offered, is evidence, without further proof thereof.’ Section 935. This section does not in terms say that the certificate is evidence, but that a certified conveyance is evidence. Still, as it is made evidence ‘without further proof thereof,’ that is, of the...