McMurray v. Crawford

• Decision Date: 11 May 1979
• Docket Number: No. 49800,49800
• Parties: Gerald R. McMURRAY, Appellee, v. Avis CRAWFORD, Appellant.
• Court: Kansas Court of Appeals

Page 1109

594 P.2d 1109

3 Kan.App.2d 329

Gerald R. McMURRAY, Appellee, v. Avis CRAWFORD, Appellant.

No. 49800.

Court of Appeals of Kansas.

May 11, 1979.

Syllabus by the Court

1. One who joins in the execution of a real estate mortgage as security for a note cannot defeat foreclosure merely because he did not also sign the note.

2. A notary's certificate of acknowledgment gives rise to the presumption of execution of the instrument. Where execution is denied, the presumption may be overcome only by clear and convincing evidence. The party against whom the presumption operates has the burden of proof of nonexecution of the instrument.

John F. Hayes, of Gilliland, Hayes & Goering, Hutchinson, for appellant.

R. L. Leslie, of Hess, Leslie, Berkley & Granger, Hutchinson, for appellee.

Before REES, P. J., and SPENCER and SWINEHART, JJ.

REES, Judge:

Plaintiff held two promissory notes. The consideration for the notes was paid by plaintiff to defendant's husband. Each note was secured by a real estate mortgage. Both mortgages were of the same tract of property. The notes and mortgages were delivered to plaintiff by defendant's husband in 1961 and 1963. Plaintiff had the mortgages recorded. Defendant's husband died in 1970. The notes had matured. After defendant made payments to plaintiff during the years 1971 through 1974, she stopped. Plaintiff brought this action for judgment on the notes and foreclosure of the mortgages. Defendant denied she executed the notes and mortgages. She alleged her purported signatures were forgeries. In addition, she sought recovery of the payments she had made alleging misrepresentation or fraud on the part of plaintiff. Defendant appeals from an adverse judgment after trial to the court. We affirm.

Defendant raises three issues on appeal. Two may be disposed of briefly. First, she asserts error in the denial of her timely demand for a jury trial. It is not controverted that a foreclosure action is equitable in nature and suits in equity are not entitled to jury trial as a matter of right. Karnes Enterprises, Inc. v. Quan, 221 Kan. 596, 600-602, 561 P.2d 825 (1977). Does defendant's insertion into this action of the questions of forgery and misrepresentation or fraud require a jury trial? We hold it does not.

The line of arguably contrary case authority, as represented by Clemenson v. Chandler et al., 4 Kan. *558, *560-561 (1868), through State Bank of Downs v. Criswell, 155 Kan. 314, Syl. PP 1, 2, 315-316, 124 P.2d 500 (1942), in our view expressly or implicitly relies upon G.S.1949, 60-2903, or its predecessor, which read:

"Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code."

G.S.1949, 60-2903 was repealed effective January 1, 1964. L.1963, ch. 303, § 60-2609. No similar statute has been enacted since.

K.S.A. 60-238(A ) states:

"Right preserved. The right of trial by jury as declared by section 5 of the bill of rights in the Kansas constitution, and as given by a statute of the state shall be preserved to the parties inviolate."

Kan.Const. Bill of Rights, § 5, states:

"Trial by jury. The right of trial by jury shall be inviolate."

The constitutional right to jury trial is that right as it existed at common law. At common law, suits in equity were not entitled to jury trial as a matter of right. Whether an action is one in equity is determined by ascertaining whether its essential nature is grounded on equitable rights and if equitable relief is sought. Karnes Enterprises, Inc. v. Quan, 221 Kan. at 600, 561 P.2d 825. Defendant's affirmative defense of forgery and assertion of a counterclaim did not alter the essential nature of this foreclosure action and she was not entitled to a jury trial as a matter of right. See, E. g., Fisher v. Rakestraw et al., 117 Kan. 441, Syl. P 2, 445-447, 232 P. 605 (1925); Union State Bank v. Chapman, 124 Kan. 315, 317-318, 259 P. 681 (1927).

Defendant argues that assuming plaintiff is entitled to judgment, the amount of the unpaid obligation on the notes was miscalculated by the trial court. Plaintiff concedes this to be true. Nothing more need be said.

The remaining issue is the one fraught with the greatest difficulty. Defendant points to the following parts of the trial court memorandum decision:

"In the absence of evidence to the contrary, sworn public officials are presumed to have performed their duties properly. [Ray v. Miller] (78 Kan. 843) This presumption applies to notaries (1 Jones on Evidence, 6th ed. # 3.34). It also is a rule of general application that documents which are regular on their face are presumed to have been properly executed and to have had included in their execution all formalities which were essential to their validity (1 Jones on Evidence, 6th ed. # 3.39).

"Again, the evidence is conflicting concerning the genuineness of the defendant's signatures on the notes and mortgages in question:

" the defendant and her handwriting analyst claim the signatures are forgeries,

" the notary public's certificate claims the defendant signed the mortgages and duly acknowledged the execution of the same.

"As among the defendant, the handwriting analyst employed by her, and the notary public, it seems to the court that the notary public is the most disinterested . . . and his certification of appearance and execution of the mortgages by the defendant is quite definite. This court is not willing to conclude the notary's certificate is false and find the defendant's signatures to be forgeries."

Defendant argues the trial court erroneously relied upon the presumption of validity of documents regular on their face and the presumption that sworn public officials (here, a notary) have performed their duties properly. The specific point urged is that a presumption is not evidence and that once sufficient rebuttal evidence is introduced, the presumption vanishes.

Understanding of defendant's argument and what was said by the trial court as quoted above requires additional statement of background facts. The substance of plaintiff's trial evidence was the uncontested introduction of the notes and mortgages together with his testimony of default and the amounts due under the terms of the notes. Each document bore what purported to be the signatures of defendant and her husband. Each mortgage bore a certificate of acknowledgment of which the following is one:

"STATE OF KANSAS, Reno COUNTY, ss.

"BE IT REMEMBERED, That on this 1st day of July, 1961, before me, the undersigned, a (notary public) in and for the County and State aforesaid, came Thomas Crawford Jr. & Avis Crawford, husband & wife who are personally known to me to be the same persons who executed the foregoing instrument of writing, and duly acknowledged the execution of the same.

"IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my notarial seal on the day and year last above written.

"(SEAL)

(s) Lewis R. McKibben

(s) Lewis R. Notary Public

"My commission expires November 16, 1963."

Defendant's trial evidence included her testimony and that of a handwriting analyst, an admitted expert witness. Defendant denied she signed any of the documents. She testified all of the four handwritings purporting to be her signatures were forgeries. The expert witness testified all were forgeries. Neither party called the notary as a witness. Nothing is shown in the record concerning the notary's availability. Plaintiff testified none of the four documents were signed in his presence; they were delivered to him as completed instruments. What we have said constitutes the entirety of the evidence concerning the execution of the notes and mortgages by defendant.

At this point we pause to observe that neither note bore a certificate of acknowledgment but the language of each mortgage made specific reference to its underlying note. One who joins in the execution of a real estate mortgage as security for a note cannot defeat foreclosure merely because he did not also sign the note. Hill, Adm'r v. Petty, 116 Kan. 360, Syl. P 1, 226, P. 717 (1924). Since this defendant's practical problem is her exposure to foreclosure of mortgages on her residence, we will address ourselves only to the mortgages and not the notes.

Defendant argues the presumptions relied upon by the trial court "were not probative" and asserts, without explanation satisfactory to us, that K.S.A. 60-414(B ) is applicable. In response, plaintiff asserts it is K.S.A. 60-414(A ) that is applicable. Neither party has referred to other statutory provisions.

The relevant Kansas statutory law concerning presumptions is as follows:

"As used in this article unless the context otherwise requires:

"(A ) 'Evidence' is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay.

"(B ) 'Relevant evidence' means evidence having any tendency in reason to prove any material fact.

"(C ) 'Proof' is all of the evidence before the trier of the fact relevant to a fact in issue which tends to prove the existence or nonexistence of such fact.

"(D ) 'Burden of proof' means the obligation of a party to meet the requirements of a rule of law that the fact be proven either by a preponderance of the evidence or by clear and convincing evidence or beyond a reasonable doubt, as the case may be. Burden of proof is synonymous with 'burden of persuasion.' "(E ) 'Burden of producing evidence' means the obligation of a party to introduce evidence when necessary to avoid the risk of a directed verdict or peremptory finding against him or her on a material issue of fact." K.S.A. 60-401.

"A presumption is an...