Futhey v. Potts

• Decision Date: 04 June 1918
• Docket Number: No 19245.,19245.
• Citation: Futhey v. Potts, 204 S.W. 180 (Mo. 1918)
• Parties: FUTHEY v. POTTS et al.
• Court: Missouri Supreme Court

204 S.W. 180

FUTHEY v. POTTS et al.

No 19245.

Supreme Court of Missouri, Division No. 1.

June 4, 1918.

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Action by G. A. Futhey against John Potts and others. From an adverse judgment, plaintiff appeals. Affirmed.

J. S. Clarke, of Ava, for appellant. Jos. V. Pitts, of Ava, for respondents.

GRAVES, J.

Action in equity in two counts. The first count seeks the reformation of a deed on the ground of mistake in, the description of the lands conveyed thereby. The second count seeks the cancellation of a deed to 320 acres of land in Douglas county on the ground that the grantors' names had been forged thereto. The deed described in the first count of the petition covers a part only of the 320 acres described in the second deed, which second deed is alleged to be a forgery. Plaintiff, G. A. Futhey, was the owner of the 320 acres of land above mentioned. By the first count of his petition he admits that he and his wife undertook to convey 145 acres of this 320 acres of land to John Potts, now deceased, but that there was a mistake made as to the numbers of the land. This alleged erroneous deed was dated June 29, 1912. The alleged forged deed is dated August 26, 1912, and placed on record September 12, 1912. The first deed was not recorded until after the death of John Potts. Both deeds were found among the papers of the deceased. Defendants are heirs of John Potts, deceased. The real contest in the case was upon the second count of the petition, and upon this count the trial court found that the deed to the 320 acres of land was duly signed by plaintiff and his wife. From such judgment they have appealed.

I. Both deeds were acknowledged before Wm. Doane, justice of the peace of the county. John Potts being dead, plaintiff and wife were not permitted to testify concerning the deed. The evidence, to say the most, is conflicting as to whether or not the signatures of plaintiff and wife to the last deed were their signatures. An attempt was made to show that their signatures were in the same handwriting as their names in the body of the deed, and that the body of the deed was written by Wm. Doane, the justice of the peace. On the other hand, witnesses testify that plaintiff said that he had sold the whole farm to Potts. Doane testified that plaintiff and his wife signed the deed in his presence, and that he took their acknowledgment thereto. There is no evidence that Wm. Doane, the justice of the peace, was in any way interested. Under such circumstances, the rule as to his certificate of acknowledgment is thus well stated by Barclay, J., in Barrett v. Davis, 104 Mo. loc. cit. 555, 16 S. W. 378:

"In our state, in view of the obvious meaning of the statute on this subject, the courts have felt constrained to hold that such certificates may be avoided by...