McKay v. Lasher

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: PECKHAM
• Citation: McKay v. Lasher, 121 N.Y. 477, 24 N.E. 711 (N.Y. 1890)
• Decision Date: 03 June 1890
• Parties: MARY MCKAY et al., Respondents, v. ALLEN LASHER et al., Appellants.

121 N.Y. 477

24 N.E. 711

McKAY et al.

v.LASHER et al.

Court of Appeals of New York.

June 3, 1890.

Appeal from supreme court, general term, third department.

Action by Mary McKay and others against Allen Lasher and another for the value of timber, etc., removed by defendants from lands claimed by plaintiffs. Defendants claimed under an alleged deed from James Clark and wife to Pierre Cranch. Plaintiffs alleged that this deed was a forgery. A judgment for plaintiffs was affirmed by the general term, and defendants appeal.

Wm. W. Northrop, for appellants.

F. L. Westbrook, for respondents.

PECKHAM, J.

The defendants urge here several grounds for a reversal of this judgment. I will mention them in their order.

1. It is claimed that the learned trial court erred in permitting the plaintiffs to introduce evidence regarding the mental condition of one Joseph C. Lawrence from 1882 down to 1886, when he died. In order to comprehend the force of the objection, a few facts must be here stated. Joseph C. Lawrence was the subscribing witness to the execution of an alleged deed from James Clark and wife to Pierre Cranch, which deed purported to have been executed in the year 1875, and the acknowledgment of the grantors purported to have been taken by Lawrence as a notary public in that year. It was, however, admitted that Lawrence, in 1875, was not a notary public. The plaintiffs claimed the deed was a forgery. The defendants based their defense upon its genuineness, and, in order to prove its execution, (the acknowledgment before Lawrence, certified by him as notary public in 1875, being worthless, because he was not then a notary,) the defendants, in June, 1885, procured the affidavit of Lawrence as subscribing witness to the deed to be taken before a notary; and, the affidavit and the notary's certificate of such sworn acknowledgment being put on the deed, it was thus made receivable in evidence without calling Mr. Lawrence, under section 935 of the Code of Civil Procedure. But by section 936 of the Code the certificate is not conclusive, and it may be rebutted; and, if it appear that the proof was taken upon the oath of an interested or incompetent witness, the conveyance is not received until its execution is established by other competent proof. When the defendants offered in evidence the deed from James Clark and wife to Cranch, with the affidavit of Lawrence as subscribing witness, taken before Sackett, a notary public, the defendants had made out a prima facie case for the admission of such deed, and the burden then rested upon the plaintiffs of showing that for some one or all of the reasons mentioned in the statute the deed should not be received in evidence until its execution should be established by other competent proof. This burden the plaintiffs endeavored to sustain by proof that from 1882 down to 1886, when he died, Mr. Lawrence was an incompetent witness by reason of loss of mind, induced by senile dementia, under which disease he was suffering during those years, and from the effects of which he died in the year above stated. No question arises as to the character or sufficiency of this proof, as there is no motion for the nonsuit of plaintiffs, or for a direction of verdict for defendants, and no exception to the judge's charge, no portion of which is given. The contention of the counsel for the defendants, as stated in his brief, seems to be that the evidence of imbecility of mind should have been directed to the time when Mr. Lawrence became subscribing witness to the deed in 1875, and not to the time when he proved its execution by his ex parte oath in 1885. The statement of the objection is, as it seems to me, as conclusive an answer to it as could be framed were pages to be written on the subject. It was by virtue of his oath of 1885 that the deed was made prima facie admissible in evidence;...