Northcrest, Inc. v. Walker Bank & Trust Co.

• Decision Date: 29 September 1952
• Docket Number: No. 7735,7735
• Citation: 248 P.2d 692,122 Utah 268
• Court: Utah Supreme Court
• Parties: NORTHCREST, Inc. v. WALKER BANK & TRUST CO. et al.

Page 692

248 P.2d 692

122 Utah 268

NORTHCREST, Inc. v. WALKER BANK & TRUST CO. et al.

No. 7735.

Supreme Court of Utah.

Sept. 29, 1952.

Thomas & Armstrong, H. P. Thomas, Salt Lake City, for appellant.

Ray R. Christensen, Salt Lake City, for respondents.

CROCKETT, Justice.

Northcrest, Inc., sued to quiet title to two adjoining tracts of land located along the foothills above the bench northeast of Salt Lake City, Utah. It claimed title through a deed from Hugh L. Thomas, Jr. The trial court found that the deed by which Hugh, Jr., purported to take the property from his mother, Lucie R. Thomas, was a forgery; quieted title in plaintiff to only one-third of it as grantee of Hugh, Jr., and awarded the other two-thirds to the defendants, John L. Thomas and Gertrude Thomas Gardner, as the other surviving heirs of Lucie R. Thomas. Plaintiff appeals, claiming all of the property.

Three separate chains of title are relied upon by plaintiff in support of its pretention to ownership: First, through the above-mentioned deed from Hugh L. Thomas, Jr.; second, through a quitclaim deed from the Utah Savings & Trust Company; third, through another quitclaim, a source we shall call the 'Hempstead title'.

Undisputed is the plaintiff's contention that one who asserts the invalidity of a deed must so prove by clear and convincing evidence. Thornley Land & Livestock Co. v. Gailey, 105 Utah 519, 143 P.2d 283; Corey v. Roberts, 82 Utah 445, 25 P.2d 940. The trial court found that defendants had met this burden in regard to all three of the aforementioned deeds. In appraising the sufficiency of the evidence, it is necessary to set forth the facts and also to discuss errors assigned respecting each of the asserted sources of title.

All three of the titles mentioned stem from a common source: Mrs. Lucie R Thomas, the mother of John, Gertrude and Hugh L. Thomas Jr. The mother Lucie died in 1947 and the present dispute arises concerning certain transactions and conduct respecting the property occurring during her lifetime.

Northcrest first purportedly bought the property from Hugh, Jr. He gave them a warranty deed dated January 11, 1948. They were to pay him $2,500; $1,800 was paid in cash, and $700 was withheld to clear up certain defects or clouds on the title (the other two chains of title now relied upon by plaintiff). When the brother and sister, John and Gertrude, learned of this, and that Hugh claimed that their mother had deeded to him before she died, they challenged the validity of the deed to Hugh, and plaintiff's title.

As above set out, the trial court found that a purported deed from Lucie (the mother) to Hugh, Jr., bearing date of September 16, 1947 was a forgery. Plaintiff maintains that there is not sufficient evidence to support such a finding.

Defendants' evidence that this deed was forged rests upon three separate bases: (a) Expert testimony that the signature on the deed was not that of Lucie R. Thomas; (b) The testimony of the notary that Lucie R. Thomas did not personally appear before her or otherwise acknowledge the deed; and (c) evidence that the mother Lucie was not in the State of Utah at or near the time the acknowledgment was made in Salt Lake City.

As to (a) above mentioned, plaintiff now concedes that the signature on the deed was not in the handwriting of Lucie R. Thomas. It postulates, however, that because of the acknowledgment and recordation, it must be assumed that she adopted or ratified the signature as her own, and that there is not sufficient competent evidence to disprove the conveyance. It is true that such acknowledgment and recordation give rise to a presumption of the genuineness and the due execution and delivery of the deed and is prima facie evidence thereof. Thomas v. Peterson, 213 Cal. 672, 3 P.2d 306, and see Sec. 104-48-12, U.C.A.1943. This presumption should not be regarded lightly but should be given great weight. The authorities generally hold that the effect of such certificate of acknowledgment will not be overthrown upon a mere preponderance of the evidence, but it must be clear and convincing. 1 C.J.S., Acknowledgments, Sec. 141, page 901; 1 Am.Jur. 380, Acknowledgments, Sec. 155.

Plaintiff assigns as error the court's action in permitting the notary, Marguerite Clayton, to testify over plaintiff's objection that Lucie R. Thomas did not in fact appear before her but that she executed the acknowledgment because she 'thought it looked like her signature'. There are indeed some authorities which hold that a notary should not be permitted to dispute his certificate. These are usually based on situations where the person purporting to execute the deed actually appeared before the notary public, but due to physical infirmity, mental incapacity, or failure to follow the forms prescribed by law did not accomplish a valid acknowledgment. But we are not here concerned with such circumstances. Many authorities hold that where a party did not in fact appear before the notary, nor otherwise acknowledge the deed before him, that the notary may testify to such facts in impeachment of his certificate. 1 C.J.S., Acknowledgments, Sec. 139, page 900; People's Gas. Co. v. Fletcher, 81 Kan. 76, 105 P. 24, 41 L.R.A.,N.S., 1170 and 1171.

1 Am.Jur. 380, Acknowledgments, Sec. 154, states:

'* * * The trend of authority, however, is in favor of admitting any evidence that may have a tendency to prove the truth, and a more liberal rule permits the officer to be called as a witness and compelled under oath to state the true facts of the transaction so far as he can remember them, whether he acted under mistake, misapprehension, or in collusion with the party to be benefited by taking the acknowledgment * * *.'

Among numerous cases affirming this rule are: Qualls v. Qualls, 196 Ala. 524, 72 So. 76; Effenberger v. Durant, 57 Okl. 445, 156 P. 212; Campbell v. Campbell, 146 Wash. 478, 263 P. 957, 958. Wigmore in his work on Evidence, Vol. II, 3rd Ed., Sec 530, in discussing this problem concludes that there is really no basis for excluding the notary's testimony merely because it contradicts his previous certificate. He says:

'* * * The notion has no better grounds for support here than elsewhere. If the certificate is not absolutely conclusive and may be otherwise shown to be incorrect, then the official should be equally competent. The official doubtless should be punished, but not the party needing his testimony. The official is clearly capable of falsification, but the value of his testimony should be left to the jury.'

We are in accord with the foregoing rule as better serving the purpose of getting at the truth and doing justice between the parties.

Plaintiff also argues that the notary's testimony is not entitled to persuasive weight, because her prior certificate weighed against it, nullifies her testimony and renders it valueless. The credit to be given her testimony was for the trier of the facts. As stated in Campbell v. Campbell, supra:

'* * * It would seem necessarily to follow, therefore, that the person wronged by such an act should not be deprived of any testimony which would tend to correct the wrong, and it can be that the testimony of the officer taking the acknowledgment would be the most persuasive testimony that could be produced upon the fact. The weight that is to be given to his testimony will of course depend upon the circumstances, but the triers of the fact in such an instance, as in all other instances of controverted fact, must be relied upon to give to the testimony its due weight. * * *'

and see also Camp v. Carpenter, 52 Mich. 375, 18 N.W. 113, 115, to the same effect and in which the court also said:

'* * * It would be * * * absurd to allow a certificate such weight as is claimed for it here, when the notary himself contradicts his own statements, and shows its want of truth. * * *'

In addition to the evidence of the notary, and that the signature was not Lucie's, there is evidence that Lucie R. Thomas was not in or near Salt Lake but was in Kentucky or Florida when the deed was supposedly made. There is no doubt that the proof was sufficient to support the court's finding that the deed was a forgery. This destroys the presumption of validity based on acknowledgment and recordation.

The second chain of title through which plaintiff claims, is its quitclaim deed from the Utah Savings & Trust Company. In 1914, Lucie R. Thomas and her husband, Hugh, Sr., had given that bank a warranty deed to this property. The trial court concluded that this deed was actually a mortgage given as security for a loan which had been paid. Defendants' contention is that the evidence is not sufficient to meet the 'clear and convincing' burden of proof which rests upon one seeking to prove that a deed is a mortgage. Defendants called as a witness Mr. E. R. McGee from the bank, who produced its records, made at the time of the transaction, and revealed their contents. They showed that Lucie R. Thomas and her husband, Hugh, Sr., had given the bank, as security for a loan, a warranty deed to part of Sec. 29, T. 1 N., R. 1 E., S. L. M. (wherein this property lies) and that the loan had been repaid. The loan was made on the same date and the consideration named in the deed was $1,400, the same amount as the loan. It was further proved that no other deed from Lucie Thomas to the bank covering lands in said Sec. 29 had ever been recorded. These circumstances seem to practically remove any uncertainty which may have existed that the warranty deed referred to was one given as security for the loan. The officials of the bank so considered it.

Willard R. Smith, Treasurer of Northcrest, who conducted the negotiations for purchase of the land from Hugh, Jr., conceded that the plaintiff gave nothing for the quitclaim deed from Utah Savings; its officials advised him that they claimed no interest in the property and willingly gave the quitclaim for the purpose of clearing up the...