Barbee v. Amory

• Decision Date: 11 December 1928
• Docket Number: 5989.
• Citation: 146 S.E. 59,106 W.Va. 507
• Parties: BARBEE v. AMORY et al.
• Court: West Virginia Supreme Court

146 S.E. 59

106 W.Va. 507

BARBEE v. AMORY et al.

No. 5989.

Supreme Court of Appeals of West Virginia.

December 11, 1928

Submitted November 20, 1928.

Syllabus by the Court.

Either the fraudulent making or altering of an instrument of legal import to the prejudice of another's rights, constitutes forgery.

A forged deed is a nullity, and neither the grantee nor those claiming under him can acquire any title under such deed.

A court of equity has jurisdiction to cancel a forged deed purporting to co nvey real property, and all deeds purporting to grant title to such real property made subsequent to and dependent upon such forged deed, as clouds upon the title of the real owner.

The rule that, where one of two innocent persons must suffer, he who puts it in the power of another to do the wrong must bear the loss, has no application in the case of forged instruments.

Appeal from Circuit Court, Mason County.

Suit by H. A. Barbee against G. E. Amory and others. Decree of dismissal, and plaintiff appeals. Reversed and remanded.

Hogg & Hogg, of Point Pleasant, for appellant.

B. H Blagg and Musgrave & Blessing, all of Point Pleasant, for appellees.

MAXWELL J.

By his bill in this suit the plaintiff sought to have canceled and set aside a deed purporting to have been executed by him and others to the defendant G. E. Amory, and a deed of trust from said Amory conveying the same property to a trustee to secure the defendant Walter E. Lewis in his indorsement on a note made by Amory, and to enjoin the sale of the property in question under the trust deed. From a decree dissolving the temporary injunction granted on the bill and dismissing the same, plaintiff prosecutes the present appeal.

In May 1923, the plaintiff purchased at judicial sale a tract of land, paying the cash consideration required by the decree of sale, and gave his notes for the balance of the purchase price, the legal title to the property to remain in the special commissioners making the sale until payment in full of the notes. Plaintiff laid the land off into city lots and, by special arrangement with the commissioners, Chas. E Hogg and L. C. Sommerville, it was provided and subsequently approved by decree of court that plaintiff might make sales of the lots upon payment of the full sale price of each lot to the commissioners, to be credited on his notes until discharged, whereupon he and the commissioners were to execute deeds to his purchasers. Between the middle of the year 1923 and the fall of 1925, a number of the lots were sold, pursuant to this arrangement, through the Cammack Sales Agency, the defendant Amory acting for the sales agency. Some time early in the year 1926 plaintiff discovered that lots Nos. 25 and 26 of his said subdivision were advertised for sale under a deed of trust purporting to have been executed by Amory and wife to secure a note of Amory to the defendant Walter E. Lewis. Upon investigation, plaintiff learned that a deed, dated September 28, 1923, for lots 25 and 26, purporting to have been executed by himself and wife and the commissioners to Amory, had been admitted to record September 11, 1925.

Plaintiff claims that the deed is a forgery; that he kept a record of all completed sales, which record does not show such a sale to Amory; and he testified that, some time in the late summer or fall of 1925, Amory furnished to him a map on which all of the lots sold were checked off, and that lots 25 and 26 were not checked. It appears that some deeds were executed for lots not actually taken by the purchasers reported by Amory, and it is not clear what disposition was made of these deeds. Plaintiff did not know what became of such deeds, but swears positively that at no time did Amory ever report a sale of lots 25 and 26 to himself, and that he did not receive payment for these lots. He says that the deeds usually consisted of two or three pages, and that the signatures and acknowledgments, as a rule, constituted the last page, making it possible to attach that page to any other paper.

Charles E. Hogg, one of the commissioners making sale of the property to plaintiff, testified that in most instances he kept carbon copies of all deeds written, but that he had in his files only one copy of a deed made to Amory as sole grantee, and it was for other lots. There was another deed to Amory and Musgrave jointly.

The defendant Lewis testified that, when he obtained for Amory from a bank in the town of Buffalo, Putnam county, the loan, to secure which he indorsed Amory's note and took the deed of trust here involved, Amory showed him a deed for the property in question, which bore the county clerk's certificate or recordation. This was either September 11 or 12, 1928. The deed of trust was dated September 11th, and was admitted to record the next day. Lewis had formerly purchased eight of the Barbee lots.

The clerk of the county court testified that the deed in question was admitted to record September 11, 1925, and that on the margin of the record book there appeared these words: "September 28, 1925, delivered to Russell Stone, Ph nix Restaurant, Point Pleasant, W.Va." Stone says that one day, as he was leaving the restaurant while Amory was eating dinner after one o'clock, the latter asked the witness to stop at the county clerk's office and get a deed for him before returning, and that he did so. He knew nothing of the contents.

Mrs. Amory swears positively that she did not sign nor acknowledge the deed of trust securing Lewis; in fact, that she had never heard of such an instrument, nor of the supposed ownership by her husband of the lots in question. She had lived at Huntington for the past four years, and had been in Point Pleasant where the notary took the acknowledgment several times, but could not say definitely whether she was there September 11, 1925, but did not think she was. When asked whether the deed of trust was acknowledged before him by G. E. Amory and Myrtle Amory, the notary, after examining the papers, answered: "Yes, sir. She may have acknowledged it by telephone, I do not remember."

At the time of taking the depositions, no one knew of the whereabouts of Amory; even his wife did not know where he was. The deed in question seems to have disappeared with him.

It is not clear on what ground the circuit court found for the defendants. The final decree, after dissolving the injunction and dismissing the bill, further recites: "But nothing herein contained shall be considered to prejudice the rights of the plaintiff, H. A. Barbee, to bring such actions against the said G. E. Amory as he may be advised, to recover from the said G. E. Amory any sums due him from the said Amory by reason of any matters complained of in his said bill."

It is not clear from the above provision whether or not the trial court found the deed in question to be a forgery. If the court did find it to be forged, it is evident that the defendant Lewis' theory that, where one of two innocent persons must suffer, he who put it in the power of another to do the wrong must bear the loss, must have controlled the decision.

We think the evidence amply sufficient to support a finding of forgery. Plaintiff says the lots in question were not sold to Amory, and...