O'Neil v. Webster

• Decision Date: 04 January 1890
• Citation: 150 Mass. 572,23 N.E. 235
• Parties: O'NEIL v. WEBSTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 572

23 N.E. 235

O'NEIL

v.WEBSTER.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1890.

Appeal from superior court, Suffolk county.

Bill in equity by Honora O'Neil against Mary A. Webster, setting up that plaintiff, after an examination of the records, and finding the title all clear, purchased certain land of one Charles C. Kendall, and that defendant demands payment of $500, with interest, alleged to be secured by mortgage on said land, and that such mortgage had by a discharge, duly acknowledged and recorded, been released by defendant, and asking for an injunction against the enforcing of the mortgage. On hearing below, decree was entered for defendant, and plaintiff appealed.

R. Lund and M.J. Creed, for plaintiff.

Geo. J. Tufts, for defendant.

W. ALLEN, J.

The evidence shows that the defendant never executed the release of the mortgage, and that her signature to it was forged. The plaintiff contends that the certificate of the justice of the peace, that the defendant acknowledged the deed, is conclusive that she executed it. The only use of the certificate of acknowledgment of a deed by a grantor is to entitle it to be recorded. It is familiar law that the registry of a deed is not conclusive proof of its execution. When the original deed is the proper evidence, its execution must be proved as if it were not recorded. When a copy of a deed from the registry is competent, the registry is prima facie proof of its execution, but not conclusive. Samuels v. Borrowscale, 104 Mass. 207;Eaton v. Campbell, 7 Pick. 10;Com. v. Emery, 2 Gray, 80;Pidge v. Tyler, 4 Mass. 541.It is then contended by the plaintiff that the defendant adopted the signature, and acknowledged the deed to be hers. But the evidence shows that the defendant had no knowledge of the discharge, and did not acknowledge any paper to be her deed; but that Kendall, the mortgagor, and the forger of the discharge, deceived the justice of the peace into believing that an acknowledgment to Kendall by the defendant that she had verbally extended another mortgage was an acknowledgment that this discharge was her deed, and fraudulently induced the justice to attest her signature and to certify to her acknowledgment of the instrument before him. We cannot see that the mistake of the justice was caused by any negligence or fault on the part of the defendant, or that she is in any way estopped to show the truth. Decree affirmed.