Albright v. Stevenson

• Decision Date: 01 March 1910
• Citation: 126 S.W. 1027,227 Mo. 333
• Parties: ALBRIGHT v. STEVENSON et al.
• Court: Missouri Supreme Court

126 S.W. 1027

227 Mo. 333

ALBRIGHT v. STEVENSON et al.

Supreme Court of Missouri. Division No. 1.

March 1, 1910.

1. ACKNOWLEDGMENT (§ 62) — CERTIFICATE OF ACKNOWLEDGMENT — PRESUMPTIONS.

Under the express language of Rev. St. 1835, p. 124, § 37, a certificate of acknowledgment to a deed is only prima facie evidence of the facts recited, but to warrant a finding that the certificate is false, the evidence must clearly preponderate in favor of such a finding.

2. ACKNOWLEDGMENT (§ 59) — CERTIFICATE OF ACKNOWLEDGMENT — PRESUMPTIONS.

Where the officer purporting to take the acknowledgment of a deed is the real beneficiary therein, and he is charged with a forgery of the deed, and with making a false certificate, the rule that a certificate of acknowledgment is prima facie evidence of the facts recited does not obtain until the charges are determined favorably to the officer, and, when so determined, the usual presumption will follow.

3. APPEAL AND ERROR (§ 1009) — FINDINGS — CONCLUSIVENESS.

The Supreme Court, though it hears equity cases de novo, will yield to the findings of the trial judge who heard the witnesses.

4. DEEDS (§ 207) — VALIDITY — FORGERY — EVIDENCE.

Evidence held to justify a finding that a deed was a forgery, and that the certificate of acknowledgment thereof was false.

Appeal from Circuit Court, Nodaway County; Wm. C. Ellison, Judge.

Action by William A. Albright against Robert M. Stevenson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. H. Sayler and Snibarger, Blagg & Ellison, for appellants. Anthony & Ford and L. C. Cook, for respondent.

GRAVES, J.

Plaintiff brings this action to restrain a sale under a certain alleged deed of trust, securing an alleged note or bond of $8,500 upon certain lands in Nodaway county belonging to plaintiff. Plaintiff further seeks to have said deed of trust canceled and for naught held. As grounds therefor he charges the forgery of the deed of trust, as well as the note of $8,500 secured thereby, in so far as the plaintiff's name appears upon said note and upon said deed of trust. It is also averred that one Tennie E. Haynes, the principal or first signer in said note, was the agent of defendant Robert M. Stevenson and further, that Haynes and Stevenson were partners in certain real estate matters, and, further, that said deed of trust and note were wholly without consideration in so far as the plaintiff was concerned. Defendant John P. Stevenson is the trustee in such alleged deed of trust, and defendant George L. Evans is the sheriff of Nodaway county, alleged to be the acting trustee, and threatening to foreclose the same at the direction and request of Robert M. Stevenson. By answer, the said Evans admitted that he was, as sheriff and as acting trustee in the absence of the regular trustee, proceeding to foreclose such deed of trust at the request of the beneficiary of Robert M. Stevenson. Further answering, he disclaimed any knowledge of the facts and any personal interest in the controversy. The two Stevensons by answer admitted the attempted foreclosure as admitted by the sheriff. They then specifically deny that said note and deed of trust were forgeries, the partnership of Robert M. Stevenson and Haynes, and further deny that Haynes was the agent of Stevenson in making the alleged loan, described by the note and deed of trust. To these specific denials was coupled a general denial. Upon these issues the case was tried resulting in a decree for plaintiff to the effect that he had never signed the two papers in controversy, nor authorized the same to be signed for him, and, further, that he received none of the proceeds thereof, and that for these reasons the sale under such deed of trust should be enjoined, and the two said instruments be canceled, and for naught held. From such decree the defendants have appealed.

Some of the salient and undisputed facts may be thus stated: Haynes was the son-in-law of the plaintiff; that Haynes signed the $8,500 note as principal; that Haynes lived at Skidmore, Mo., and at the time of the loan in question was engaged in erecting a two-story brick building there; that Robert M. Stevenson resided at Tarkio, Mo., and was engaged in loaning money; that Stevenson received the note and deed of trust in question from Haynes and paid the proceeds thereof out upon drafts from Haynes; that the purported acknowledgment of plaintiff to the alleged deed of trust purported to be taken by Haynes; that Haynes, upon being pressed by Stevenson concerning some business matters, committed suicide. The evidence in detail, which will be noticed in the course of the opinion, was centered upon the questions (1) as to the relationship between Robert M. Stevenson and Haynes in a business way, and (2) the genuineness of the two instruments of writing involved in this suit. Such sufficiently outlines the case.

1. In this case the defendants first plant themselves behind the certificate of the notary to the deed of trust. They urge that to overcome the recitals of such certificate the proof must be clear and convincing beyond a reasonable doubt. A great list of cases has been assembled, but our own cases fix the views of this court upon that question, and we need not go further upon the general proposition. Our statute in fact fixes the status of an acknowledgment in Missouri. What other courts may say as to the conclusiveness of an acknowledgment has no binding effect upon this court. We must take into consideration our statute. This statute reads: "Neither the certificate of the acknowledgment nor the proof of any such instrument nor the record nor the transcript of the record of such instrument, shall be conclusive, but the same may be rebutted." This statute in its present form has been upon the books for years and long prior to the incidents of the case now under consideration. It appears that it has been largely quoted in cases where married women have attacked the certificate, but from this it will not authorize us to say that it applies to them alone. The statute is a part of our law of conveyances, and applies to all persons. No one can read the chapter and say that it does not apply to all conveyances, whether the same be made by a married woman or not. The statute first appeared in an act entitled "An act regulating conveyances," approved February 3, 1835, vide section 37, Rev. St. Mo. 1835, at page 124. It has remained in the same language from that day to this, and in the chapter wherein has been collated all the statutes pertaining to conveyances. By the terms of this statute the certificate of acknowledgment is only prima facie evidence of the facts recited. It is not conclusive evidence. What other states, with different statutes, may hold is immaterial. Decisions from such states do not enlighten us. As said in Pierce v. Georger, 103 Mo., loc. cit. 544, 15 S. W. 848, the decisions of other states do not seem to be in harmony with our cases, but as said by Macfarlane, J., in that case, so in this, the statute must be considered. On the general proposition the rule in this state is well worded by Barclay, J., in Barrett v. Davis, 104 Mo., loc. cit. 555, 16 S. W. 377. "In our state, in...