Fifer v. McCarty

• Decision Date: 31 May 1912
• Citation: 147 S.W. 833,243 Mo. 42
• Parties: CECELIA FIFER, Appellant, v. SARAH J. McCARTY and SAM S. HILLER
• Court: Missouri Supreme Court

147 S.W. 833

243 Mo. 42

CECELIA FIFER, Appellant, v. SARAH J. McCARTY and SAM S. HILLER

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from Clark Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

J. A Whiteside and W. T. Rutherford for appellant.

(1) The certificate of acknowledgment is not conclusive, and may be rebutted by other competent evidence. R. S. 1909, sec. 2820; Bohan v. Casey, 5 Mo.App. 111; Ray v Crouch, 10 Mo.App. 321; Riecke v. Westenhoff, 10 Mo.App. 358; Biggers v. Bldg. Co., 9 Mo.App. 210; Morrison v. McKee, 11 Mo.App. 594; Brocking v Straat, 17 Mo.App. 296; Wannell v. Kem, 57 Mo. 480; Sharpe v. McPike, 62 Mo. 300; Steffen v. Bauer, 70 Mo. 399; Clark v. Edwards, 75 Mo. 87; Belo v. Mays, 79 Mo. 71; Drew v. Arnold, 85 Mo. 128; Webb v. Webb, 87 Mo. 541; Addis v. Graham, 88 Mo. 197; Hammond v. Gordon, 93 Mo. 223; Rust v. Goff, 94 Mo. 511; Mays v. Pryce, 95 Mo. 604; Pierce v. Georger, 103 Mo. 540; Barrett v. Davis, 104 Mo. 549; Comings v. Leedy, 114 Mo. 454; Elliott v. Sheppard, 179 Mo. 382; Engine Co. v. Donovan, 147 Mo. 622; Albright v. Stevenson, 227 Mo. 333. (2) The degree of proof required to impeach the certificate of acknowledgment is, that there must be a "clear and decided preponderance of the evidence" against the truthfulness of the certificate. Cases, supra. (3) Under the evidence adduced, the plaintiff is not estopped to maintain this suit, nor is she guilty of laches. R. E. Co. v. Lindell, 142 Mo. 50; Gindrat v. Railroad, 19 L. R. A. 839; 24 Cyc. 840; 12 Am. and Eng. Ency. Law (1 Ed.), p. 533; 16 Cyc., pp. 153, 155, 167, 679, 706; Bartlett v. Kauder, 97 Mo. 361; Howell v. Jump, 140 Mo. 441; Blodgett v. Pury, 97 Mo. 263; Gentry v. Gentry, 122 Mo. 221; City v. Lumber Co., 98 Mo. 613; Scmitchfield v. Sauter, 119 Mo. 615; Foote v. Saunders, 72 Mo. 616; Sturgeon v. Hampton, 88 Mo. 214; Allison v. Chaney, 63 Mo. 279; Cockrill v. Hutchinson, 136 Mo. 74; Reinhard v. Mining Co., 107 Mo. 627; Smith v. Ingram, 61 L. R. A. (N. S.) 878. (4) Neither the ten nor twenty-four years Statute of Limitations prevent plaintiff's recovery. Salmon v. Davis, 29 Mo. 176; Keith v. Keith, 80 Mo. 127; Thomas v. Black, 113 Mo. 68; Sulton v. Casseleggi, 77 Mo. 397; Jones v. Manly, 58 Mo. 559; Brown v. Moore, 74 Mo. 633; State v. Moore, 61 Mo. 280; Hall v. French, 165 Mo. 430; Hunt v. Searcy, 167 Mo. 184; Dysart v. Crow, 170 Mo. 274; Graham v. Ketchum, 192 Mo. 25; McCarry v. King's Heirs, 39 Am. Dec. 171. (5) The record of the deed in question did not impart notice to plaintiff. Crockett v. Maguin, 10 Mo. 29; Dingman v. McCullum, 47 Mo. 373; Morley v. Staley, 54 Mo. 419; Tydings v. Pitcher, 82 Mo. 384; Sessenderfer v. Kemp, 83 Mo. 588; Ford v. Church, 120 Mo. 511; Railroad v. View, 156 Mo. 617; 16 Cyc. 706; Dugal v. Fryer, 3 Mo. 40; Reinhard v. Mining Co., 107 Mo. 627; Smith v. Ingram, 61 L. R. A. (N. S.) 878; 24 Am. and Eng. Ency. Law, p. 146.

Berkheimer & Dawson and Charles Hiller for respondents.

(1) While equity cases are tried in the appellate courts de novo and the appellate court is not bound by the findings of fact nisi, but unless otherwise constrained by the record the court usually yields to the finding of facts so made. Benne v. Schnecko, 100 Mo. 250; Mathias v. O'Neil, 94 Mo. 530; Berry v. Hartzell, 91 Mo. 138; Springer v. Kleinsorge, 83 Mo. 159; Bushong v. Taylor, 82 Mo. 309; Chouteau v. Allen, 70 Mo. 336; McKinney v. Northcraft, 114 Mo.App. 146; Albright v. Stephenson, 227 Mo. 345. (2) The unsupported testimony of the grantor cannot overthrow the certificate of the officer taking the acknowledgment if the same conforms to the statute. Biggers v. Bldg. Co., 9 Mo.App. 210; Biggers v. Westenhoff, 10 Mo.App. 258; Ray v. Crouch, 10 Mo.App. 321; Elliot v. Sheppard, 179 Mo. 382; Young v. Duvall, 109 U.S. 573; Llicking v. Hardin, 65 Ill. 505; Pringle v. Dunn, 37 Wis. 449; Phillips v. Bishop, 35 Neb. 487; Landers v. Boulton, 26 Cal. 606; Walter v. Weaver, 57 Tex. 569; Deter v. Glasgo, 79 Pa. St. 79; Fitzgerald v. Fitzgerald, 100 Ill. 386; Harding v. Harding, 65 Ill. 505. (3) The character of the evidence to impeach the certificate of the officer taking the acknowledgment and certifying thereto must be so clear, convincing as to amount to a moral certainty and beyond all reasonable doubt. 1 Am. and Eng. Ency. Law (2 Ed.), p. 560; Elliot v. Sheppard, 179 Mo. 382; Sweiger v. Sweiger, 58 W.Va. 119; Young v. Duvall, 109 U.S. 573; Chivington v. Colo. Springs Co., 9 Colo. 597; Brady v. Cole, 164 Ill. 116; Marden v. Dorothy, 12 A.D. 188; Warwick v. Hull, 102 Ill. 280; Jett v. Rodgers, 12 Bush. (Ky.) 564; Smith v. Ward, 1 Am. Dec. 80; Bank v. McCarty, 149 N.Y. 71; Thresher Co. v. Donovan, 147 Mo. 622; Commings v. Leedy, 114 Mo. 454; Barrett v. Davis, 104 Mo. 549; Pierce v. George, 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; Steffin v. Bauer, 79 Mo. 396; Sharp v. McPike, 62 Mo. 300; Wannell v. Kemm, 57 Mo. 458; Brocking v. Stratt, 17 Mo.App. 304; Morrison v. McKee, 11 Mo.App. 594; Riecke v. Westenhoff, 10 Mo.App. 358; Biggers v. Building Co., 9 Mo.App. 210. (4) Where the evidence is conflicting, a slight corroboration of the grantor is insufficient to overthrow the certificate of the officer taking the same. Kerr v. Russell, 18 Am. Rep. 634; Bank v. McCarty, 149 N.Y. 71; Hetter v. Glasco, 79 Pa. St. 79. (5) The court should receive the oral evidence in this case with great caution to impeach the regular certificate of the officer taking the acknowledgment, especially in this case where the date of the deed and acknowledgment shows it was executed, acknowledged and recorded more than twenty-six years ago. The officer who took same is long since dead as well the husband of Mrs. McCarty, who would have been a competent witness for her. Ringo v. Richardson, 53 Mo. 394; 1 Ency. Evid., pp. 610, 611. (6) The acknowledgment to an instrument carries with it the adoption of the signature. Tunnison v. Chamblin, 88 Ill. 378; Bank v. McCarty, 54 N.Y. 577; Vanfossen v. McGuire, 23 Iowa 300. (7) The certificate of the officer taking the acknowledgment could not be impeached by the testimony of the husband and wife alone. Miller v. Marx, 52 Ala. 322; Smith v. McGuire, 67 Ala. 34; 1 Ency. Evid., 206. (8) The presumptions in favor of officers doing their duty apply to an officer taking acknowledgments of instruments. Addis v. Greenbaum, 88 Mo. 199. (9) It is not essential that the grantor sign the deed and it is competent for the wife to affix her name by her husband as any other person. 2 Jones on Real Estate Conveyancing, sec. 1014, p. 8; First v. Deering, 21 Me. 156; Bartlett v. Drake, 100 Mass. 174.

OPINION

GRAVES, P. J.

Action in equity to set aside a quitclaim deed to certain lands in Clark county on the ground that the name of plaintiff was forged thereto, and to set aside a subsequent deed made by the grantor in the alleged forged deed to defendant Hiller. The salient facts pleaded and proven fall within a comparatively small compass. The answers are (1) a general denial, (2) the ten and twenty-four year Statutes of Limitations, (3) laches and estoppel by laches.

Thomas J. Singleton, formerly of Clark county, Missouri, was the father of plaintiff and the husband of defendant McCarty. In 1881 he died testate; and by his will his lands were devised to his wife for life, with a remainder in fee to an undivided half thereof to the plaintiff in this case.

In 1882 the quitclaim deed in dispute was acknowledged before a justice of the peace in that county, but was not delivered to Mrs. Singleton, the widow, until the day of her marriage to McCarty in the year 1883. The deed was duly recorded shortly after its delivery. All parties interested were residents of Clark county. The fight nisi centered upon the question of forgery or no forgery. Defendant McCarty claims to have purchased the interest of plaintiff in the lands in dispute, and to have paid for it with a cow and two horses, the stipulated consideration being three hundred dollars. Upon material points the evidence was conflicting, but the trial court solved the conflicts by a judgment for defendants, from which the plaintiff has appealed. Such is an outline of the case.

I. The quitclaim deed is regular upon its face as is the acknowledgment of the justice attached thereto. Under our statute, section 2820, Revised Statutes 1909, and the case law of this State, the certificate of acknowledgment is not conclusive proof of the facts recited therein. [Albright v. Stevenson, 227 Mo. 333, 126 S.W. 1027, and cases cited therein.] The certificate can be rebutted by evidence showing a different state of facts from those recited in the certificate. The case law only differs upon the quantum of proof required. In this State some of the cases require the proof to be "clear, cogent and convincing" and others say that it must be made by "a clear and decided preponderance of evidence" and still others say that such proof should be "clear and satisfactory." In some other States the proof must be such as to remove all reasonable doubt as to the falsity of the officer's certificate. Suffice it to say that our rule is not so broad. We have to consider the statute in fixing the rule as to the quantum and character of proof. Whilst as above indicated we have expressed the rule in verbiage somewhat different, yet the meaning is the same. In other words, before we will hold for naught the certificate of acknowledgment, the proof must be clear, cogent and convincing. As we gather from the briefs, counsel do not materially differ as to the rule. It might be gathered from appellant's brief that counsel were of opinion that the Albright case, supra, relaxed the...