Albright v. Stevenson
| Decision Date | 31 March 1910 |
| Citation | 126 S.W. 1027,227 Mo. 333 |
| Parties | WILLIAM M. ALBRIGHT v. ROBERT M. STEVENSON et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.
Affirmed.
J. H Sayler and Shinabargar, Blagg & Ellison for appellants.
(1) The proof to overcome the presumption of the truth of the recitals in the notary's certificate of acknowledgment to the deed of trust must be clear and convincing beyond a reasonable doubt. 1 Am. and Eng. Ency. Law (2 Ed.), pp. 560 561; 1 Cyc., pp. 622, 623, 624, 625; 1 Ency. L. and P., pp 926-934; Elliott v. Sheppard, 179 Mo. 382; Swiger v. Swiger, 58 W.Va. 119; Flagles v. Tanner, 11 Ohio Cir. Dec. 172; Young v. Duvall, 109 U.S. 573; Chivington v. Colorado Springs Co., 9 Colo. 597; Brady v. Cole, 164 Ill. 116; Marden v. Dorthy, 12 A.D. 188; 42 N.Y.S. 827; 160 N.Y. 39; Warrick v. Hull, 102 Ill. 280; Jett v. Rogers, 12 Bush (Ky.) 564; Smith v. Ward, 1 Am. Dec. 80; Bank v. McCarty, 149 N.Y. 71; Springfield Co. v. Donovan, 147 Mo. 622; Comings v. Leedy, 114 Mo. 454; Barrett v. Davis, 104 Mo. 549; Pierce v. Georger, 103 Mo. 540; Mays v. Price, 95 Mo. 603; Rust v. Goff, 94 Mo. 511; Webb v. Webb, 87 Mo. 540; Drew v. Arnold, 85 Mo. 128; Belo v. Mayes, 79 Mo. 67; Clark v. Edwards, 75 Mo. 87; Steffen v. Bauer, 79 Mo. 399; Sharpe v. McPike, 62 Mo. 300; Wannell v. Kem, 57 Mo. 458, 51 Mo. 150; Brocking v. Stratt, 17 Mo.App. 304; Morrison v. McKee, 11 Mo.App. 594; Riecke v. Westenhoff, 10 Mo.App. 358; Biggers v. House-Building Co., 9 Mo.App. 210; Bohan v. Casey, 5 Mo.App. 101. (2) Plaintiff's evidence in this case falls far short of the requirements of law, and would have been insufficient had no evidence been offered on the part of defendants. (a) It consists solely of the denial of an old man, seventy-three years old at the time of trial, whose memory was faulty and whose sight was poor. The evidence to be drawn from the material facts fails to support his story. (b) Plaintiff failed to introduce any corroborative testimony of experts or persons familiar with Albright's signature. (c) The fragmentary evidence of the commission of forgery by the deceased, Haynes, on occasions prior to the transaction in question in this case, was incompetent, and should have been excluded. It cannot be considered in weighing this case. Dow's Executor v. Spenny's Executor, 29 Mo. 386; Haynes v. Christian, 30 Mo.App. 198; Vaugh v. Wilson, 31 Mo.App. 489; 5 Ency. Ev., 857; 13 Am. and Eng. Ency. Law (2 Ed.), 1106; State v. Hopkins, 50 Vt. 316. (3) The evidence introduced by defendants fully and satisfactorily proves the genuineness of Albright's signature. (a) The demonstrative evidence furnished by a comparison of the genuine signatures of Albright with the disputed signature, may, and in this case does, have such a high probative value as to prove the authenticity of the disputed signature almost to a moral certainty. 15 Am. and Eng. Ency. Law (2 Ed.), 283; Strong v. Brewer, 17 Ala. 706; Doe v. Suckermore, 5 Ad. & El. 703. A comparison of the disputed signature with the authentic signature of Albright, by this court, on the appeal, will fully show its genuineness. This court has the right to examine the original exhibits and should do so. R. S. 1899, sec. 817; 5 Am. and Eng. Ency. Law (2 Ed.), 276; Morris v. Sargent, 18 Ia. 90; Matter of Gordon, 50 N.J.Eq. 397. (b) The fact that the signatures are not exactly alike is strong evidence tending to prove their authenticity. 15 Am. and Eng. Ency. Law (2 Ed.), 277; Howland Will Case, 4 Am. L. Rev. 625; Day v. Cole, 65 Mich. 129; Hunt v. Lawless, 7 Abb. N. Cas. (N. Y.) 113. (c) The testimony of the bank presidents was entitled to great weight, and was overwhelming and uncontradicted by any other expert testimony. 5 Ency. Ev., 534, 547; Railroad v. Finley, 38 Kan. 550; Turner v. Harr, 114 Mo. 335; Riley v. State, 44 S.W. 498; Tyler v. Todd, 36 Conn. 218; Jones v. White, 11 Humph. (Tenn.) 268; Hyde v. Woolfolk, 4 Ia. 159; 6 Ency. Ev., 403; Forgey v. Bank, 66 Ind. 123; 30 Am. Rep. 126; 15 Am. and Eng. Ency. Law, 277; 63 L. R. A. 937.
Anthony & Ford and L. C. Cook for respondent.
(1) The acknowledgment, having been certified by Tennie E. Haynes, who was financially interested in the transaction, was invalid and of no force or effect. Haynes v. Southern Assn., 124 Ala. 663; Smith v. Clark, 100 Ia. 605; Kothe v. Krag-Reynolds, 20 Ind.App. 293; Ogden Assn. v. Mensch, 196 Ill. 554; Wilson v. Griess, 90 N.W. 866. (2) The notarial certificate is no proof of the facts alleged therein where the question of forgery is raised. Most certainly would this be true in this case, since the notary himself is the forger if the signatures were forged. (3) At best the certificate of acknowledgment is only prima-facie proof of the facts alleged therein. Pierce v. Georger, 103 Mo. 540; Comings v. Ludy, 114 Mo. 454. (4) The only proof of the execution of the deed and bond is the opinions of the so-called handwriting experts. The experts had made no special study of handwriting, no special preparation, and in this case made no microscopic or other scientific examination, but judged from appearance only, after comparing the signatures with others admittedly genuine. (a) This is the lowest order of evidence, and is entitled to but little credence. Cowan v. Beall, 1 McArth. 270; Matter of Foster's Will, 34 Mich. 21; Fergueson v. Hubbell, 97 N.Y. 507; Whitaker v. Parker, 42 Ia. 585; U. S. v. Pendergast, 32 F. 198; Maye v. Herndon, 50 Miss. 110; State v. Van Tassel, 103 Ia. 6; Hardy v. Harbin, 154 U.S. 598; Moody v. Rowell, 17 Pick. 490; Mudd v. Suckermore, 5 Ad. & El. 703; Adams v. Field, 21 Vt. 256. (b) Such proof is not sufficient to overcome the positive testimony of a witness whose credibility is unimpeached. Bell v. Norwood, 7 La. 95; Borland v. Wolwrath, 33 Ia. 130; Turner v. Hand, 3 Wall. Jr. 88; Willson's Admr. v. Kuling, 50 S.W. 539; Bruner v. Wade, 84 Ia. 698; Jackson v. Adams, 100 Ia. 163. (c) The opinions of experts are advisory only and may be entirely disregarded by the court. Cosnose v. Leonard, 134 Mo. 425; Johnson v. Kahn, 97 Mo.App. 631; Morrow v. Morrow, 113 Mo.App. 444. (5) After this court has examined the signatures on the bond and deed, and has compared them with the admitted signatures on exhibit, no member of the court can say any more than the bankers who testified, than Albright himself said, than the trial court said, and plaintiff's counsel now say -- "They look very much alike." This much we all say. But is that enough? Mr. Jackson testified in this connection that it is the business of a forger to make them look alike. And that is what was done in this case. While this court may examine the exhibits, yet it cannot hear the witnesses testify; cannot see them, and watch their demeanor on the stand; cannot see that unexplainable evidence of truth or falsehood in the eye. For these reasons the appellate court will defer largely to the findings of fact of the judge, and will not disturb them, unless there is a clear preponderance of the evidence against them. Bank v. Leyser, 116 Mo. 69; Taylor v. Crockett, 123 Mo. 306; Wilson v. Craig, 175 Mo. 403; Sidler v. Mfg. Co., 121 S.W. 350; Benne v. Schnecko, 100 Mo. 257; Gillespie v. Beedy, 136 Mo.App. 550.
Plaintiff brings this action to restrain a sale under a certain alleged deed of trust, securing an alleged note or bond of $ 8500, upon certain lands in Nodaway county belonging to plaintiff. Plaintiff further seeks to have said deed of trust cancelled and for naught held. As grounds therefor he charges the forgery of the deed of trust, as well as the note of $ 8500 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, 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 cancelled, 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; Haynes signed the $ 8500 note as principal; Haynes lived at Skidmore, Missouri, and at the time of the loan in question was engaged in erecting a...
To continue reading
Request your trial