Fast v. Gilbert

Decision Date24 June 1924
Docket NumberCase Number: 14772
PartiesFAST v. GILBERT et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Deeds -- Action to Cancel -- Burden of Proof--Erroneous Instruction

Where a deed of conveyance is regular on its face, and bears the signature of the grantors and the regular certificate of acknowledgment signed and sealed by a notary public of this state, it is error, upon the trial of a suit by grantors to set aside such a deed on the ground of forgery of their names, to instruct the jury simply that in order to recover, grantors must prove the allegations of their petition by a preponderance of the evidence

2. Acknowledgment -- Impeachment of Certificate--Sufficiency of Evidence

The evidence to impeach a certificate of acknowledgment should be clear, cogent and convincing, and such as produces a conviction amounting to a moral certainty that the certificate is false. Dyal v. Norton, 47 Okla. 794, 150 P. 703

3. Appeal and Error--Review--Questions not presented at Trial

Parties will not be permitted to argue in this court, for the first time, questions not raised in the trial court by the pleadings.

Error from District Court, Custer County; Thomas A. Edwards, Judge.

Action by Albert Gilbert and another against G. G. Fast. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.

T. W. Jones, Jr., for plaintiff in error.

A. J. Welch, for defendants in error.

GORDON, J.

¶1 This action was begun in the district court of Custer county, Okla. After amended petition filed, there was answer and reply, and on March 1. 1923, defendants in error, plaintiffs below, filed motion to transfer the cause from the district court to the superior court of Custer county. On March 3, 1923, the papers were filed in the superior court of Custer county, and on April 12, 1923, the cause came regularly on for trial. Both parties appeared and without objection to the jurisdiction of the court proceeded to introduce their evidence. The jury returned a verdict in favor of plaintiffs below. The motion for new trial was overruled, exceptions taken, notice of appeal given and the case is now here for review upon appeal. The parties, for convenience, will be designated as in the trial court.

¶2 This was an action by the plaintiffs, Albert Gilbert and Ella Gilbert, to quiet title to 16 acres of land. Plaintiffs alleged that they were husband and wife; that the land in question was their homestead; that they owned the land by virtue of patent issued to plaintiff Albert Gilbert by the President of the United States on June 16, 1922. They allege that the defendant, G. G. Fast, claims to hold a deed from plaintiffs bearing date of June 30, 1922; that said deed was of record, and they attach a copy of the deed to their petition. They allege that they never executed the deed and never acknowledged the same. That if the deed bears the signature of plaintiffs, the instrument is a forgery, and if the same bears the genuine signatures of plaintiffs, such signatures were procured by fraud, and for that reason the deed is void.

¶3 In his answer, defendant admits that he holds the deed set out in plaintiffs' petition; alleges that the deed is good and valid and bears the genuine signatures of the plaintiffs, and prays that title be quieted in him In their reply plaintiffs allege again the the invalidity of the deed; that the same was never acknowledged; that it was procured by fraud and was without consideration.

¶4 At the trial, plaintiffs, in their evidence in chief, introduced as witnesses only the two plaintiffs themselves, who testified that they had never had any conversation with the defendant nor with any agent of the defendant about selling the land in question to the defendant. That they had never signed the deed which was of record and had never appeared before the notary public to acknowledge same, and had never acknowledged it. They testify that at some time about the date of the deed in question they had certain dealings with a man by the name of John Salaska, from whom they had borrowed $ 15. That he, sitting in his car, had presented to them what he said was a note for their signature, that they had signed the note. That he kept the paper covered up so they could not see what they were signing. But there is nothing to show that the paper so signed was the deed in question here. Having introduced these witnesses, with no other corroborating testimony, plaintiffs rested.

¶5 The defendant demurred to the testimony of the plaintiffs, and this demurrer was by the court overruled and exceptions saved by the defendant. The ruling of the court upon this demurrer to the evidence, and the exception thereto, was saved in the motion for new trial and is brought forward in the assignments of error here.

¶6 By this state of the record we have presented squarely the question whether the uncorroborated testimony of the grantors, in an action to quiet title, is sufficient to overcome a certificate of acknowledgment of a notary public to a conveyance regular on its face. When plaintiffs rested, there was nothing in the record against the deed and the presumption of its execution arising from the acknowledgment except the bare testimony of the plaintiffs that they had not signed or acknowledged the deed and had received no consideration.

¶7 In the case of Garber et al. v. Hauser et al., 76 Okla. 292, 185 P. 436, in an opinion by Justice McNeill, this court has said in the second paragraph of the syllabus as follows:

"The general rule is that the unsupported or uncorroborated testimony of the grantor is not sufficient to overcome the certificate of acknowledgment of the notary public to a conveyance regular on its face, especially when the certificate is supported by the testimony of the officer who took the acknowledgment, or by other competent evidence, but such testimony may be sufficient if, in view of the circumstances and probability of the particular case, it produces a condition amounting to a moral certainty that the certificate is false."

¶8 In Dyal v. Norton, 47 Okla. 794, 150 P. 703, paragraph 4 of the syllabus is as follows:

"The evidence to impeach a certificate of acknowledgment should be clear, cogent, and convincing, and such as produces a conviction amounting to a moral certainty that the certificate is false."

¶9 In the body of the opinion in this case, which is an opinion by Justice Hardy, and on pages 800, 801, we find quoted with approval the law upon this proposition as laid down in 1 C. J. 899. The quotation is as follows:

"It is very generally held that the unsupported and uncorroborated testimony of the grantor is not sufficient to overcome a certificate regular on its face, especially where the certificate is supported by the testimony of the officer who took the acknowledgment or by other competent evidence. There are, however, cases lending support to the view that the testimony of the grantor may suffice, if, in view of the circumstances and probabilities of the particular case, it produces a conviction amounting to a moral certainty that the certificate is false."

¶10 In the case of Pittsburg Coal & Mining Co. v. Wright et al., decided June 3, 1924, Vol. 29, page 66, O. A. C. R., June 6, 1924 (not yet officially reported), in an opinion by Shackleford. Commissioner, we find the first paragraph of the syllabus to read as follows:

"The general rule is that the unsupported or uncorroborated testimony of the grantor is not sufficient to overcome the certificate of acknowledgment of a notary public to a conveyance regular on its face."

¶11 This syllabus is taken from the case of Garber et al. v. Hauser et al., 76 Okla. 292, 185 P. 436, but it is only a portion of the second paragraph of the syllabus in the last named case. We take it, therefore, that the rule now is that the testimony of the grantors...

To continue reading

Request your trial
21 cases
  • Fitzsimmons v. Okla. City
    • United States
    • Oklahoma Supreme Court
    • December 15, 1942
    ...reversal of the judgment on direct attack by appeal if the question had been raised by the defendants in the trial court (Fast v. Gilbert, 102 Okla. 245, 229 P. 275), yet the error was one of law in the exercise of jurisdiction. The error was in assuming, and impliedly deciding, that the st......
  • State ex rel. Tharel v. Bd. of Com'Rs of Creek Cnty.
    • United States
    • Oklahoma Supreme Court
    • November 19, 1940
    ...rule of the effect of unconstitutional statutes is mentioned in 16 C.J.S. 290, and the reason therefor, as set out in Fast v. Gilbert, 102 Okla. 245, 229 P. 275, and Forest Lumber Co. v. Osceola Lead and Zinc Mining Co. (Mo.) 222 S. W. 398, is that one who has a good defense to an action, a......
  • First Nat. Bank of Alex v. Southland Prod. Co.
    • United States
    • Oklahoma Supreme Court
    • March 18, 1941
    ...will not be considered for the first time on appeal. Duffey v. Scientific American Comp. Dept., 30 Okla. 742,120 P. 1088; Fast v. Gilbert, 102 Okla. 245, 229 P. 275; Missouri, K. & T. R. Co. v. Prince, Co. Treas., 133 Okla. 228, 271 P. 253. ¶66 The rule alluded to is but a concrete applicat......
  • Bd. of Educ. of Town of Ringling v. State ex rel. Benton, Co.
    • United States
    • Oklahoma Supreme Court
    • May 28, 1935
    ...first raised on appeal will not be considered. Adams v. Berry-Beall Dry Goods Co., 99 Okla. 86, 225 P. 927; Fast v. Gilbert, 102 Okla. 245, 229 P. 275. ¶26 The judgment of the trial court is affirmed. ¶27 The Supreme Court acknowledges the aid of Attorneys Cyrus L. Billings, Valjean Biddiso......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT