Rowray v. Casper Mut. Building & Loan Ass'n., 1896

• Decision Date: 14 May 1935
• Docket Number: 1896
• Parties: ROWRAY v. CASPER MUT. BUILDING & LOAN ASS'N., ET AL
• Court: Wyoming Supreme Court

45 P.2d 7

48 Wyo. 290

ROWRAY v. CASPER MUT. BUILDING & LOAN ASS'N., ET AL

No. 1896

Supreme Court of Wyoming

May 14, 1935

ERROR to the District Court of Natrona County; C. O. BROWN, Judge.

Action by Dickie L. Shipp against the Casper Mutual Building & Loan Association and others, which was revived in the name of Oline Rowray, as executrix of the last will and testament of Dickie L. Shipp, deceased, and sole legatee and devisee thereunder. To review a judgment for defendants and an order refusing a new trial, plaintiff brings error.

Affirmed.

For plaintiff in error there was a brief by S.E. Phelps and E. E Enterline, both of Casper, and oral argument by Mr Enterline.

The mortgage deed and warranty deed were forged instruments. Section 32-1002, R. S. 1931. The plaintiff would have been guilty of an offense had she compounded the crime of forgery. Sec. 32-606, R. S. 1931. No rights may be acquired under a forged signature. Section 74-123, R. S. 1931. 1 Devlin on Real Estate, Sec. 240, 257; Kline v. Mueller (Okla.) 276 P. 200; Baldridge v. Sunday, (Okla.) 176 P. 404; Turner v. Nicholson, (Okl.) 241 P. 750; Austin v. Dean, 40 Mich. 386; Vacuum Oil Company v. Brett, 294 P. 638; McGinn v. Tobey, (Mich.) 4 A. S. R. 848; Marden v. Dorthy, 54 N.E. 726. Defendants were required to prove the execution of the instruments. The evidence fails to show that Mr. Shipp was the agent of plaintiff or had authority to execute the instruments in her name. The allegations of the answer of the association and its trustees with respect to the relationship of Mr. Shipp to the transaction are new matter. Answers of other defendants with reference to the subject differ somewhat and cannot be claimed as new matter. The statute prescribes what the answer shall contain. Sec. 89-1014, R. S. 1931; Phillips on Code Pleading, Secs. 235, 240, 244; Sorenson v. Townsend, (Nev.) 109 N.W. 749; Mauldin v. Ball, (Mont.) 1 P. 409; Stevens v. Conley, (Mont.) 138 P. 189; Mutual Life Insurance Company v. Summers, (Wyo.) 120 P. 185. Matters not admissible under a general denial are new matter and must be pleaded, and we think it is just as necessary to plead ratification as estoppel. Defendant Herncall never intended to plead ratification or estoppel. No proof of agency was introduced, by that we mean such agency as would authorize the husband to execute a conveyance of real estate in her name. Raymond v. National Life Ins. Co., 40 Wyo. 1; Printing Company v. Bank, (Minn.) 124 N.W. 236. One dealing with an agent is bound to ascertain the extent of his authority. Wyuta Cattle Company v. Connell, (Wyo.) 299 P. 279; Griffin v. Rosenblum, (Wyo.) 23 P.2d 348. As to ratification, we cite the case of Farmers State Bank v. Haun, 30 Wyo. 322; Henry v. Heeb, (Ind.) 5 A. S. R. 613; Building and Loan Association v. Walton, (Pa. St.) 59 A. S. R. 636. The facts in the present case are quite similar to those in the Pennsylvania case last cited. Harney v. Montgomery, 29 Wyo. 362. 21 C. J. 1113 defines equitable estoppel. Seaman v. Canal Association, 29 Wyo. 391; Carstensen v. Brown, (Wyo.) 185 P. 567; 11 A. & E. Enc. Law, (2d Ed.) 434. Estoppel must be pleaded. Tonkawa Company v. Town, (Okla.) 83 P. 915; Saylor v. Coal Corporation, (Ky.) 266 S.W. 388. Estoppel has no application to a contract void for illegality. Colby v. Trust Company, (Calif.) 117 P. 913; Reno v. Machine Company, (Calif.) 237 P. 784. The two notaries who testified that their respective certificates of acknowledgment were true, had no recollection of plaintiff signing her name to the instruments. Their testimony added no weight to the validity of their certificates. Adams v. Smith, 11 Wyo. 200. On the other hand, the plaintiff testified positively that she had never seen either instrument until after her husband's death. The special findings of the trial court are inconsistent with the general finding, and are not supported by sufficient evidence to support the judgment. The same is true of the conclusions of law. When special findings are inconsistent with the general verdict, the former controls the latter. Sec. 89-1322, R. S. 1931.

For the defendant in error, there was a brief by Hagens and Wehrli and Marvin L. Bishop, all of Casper, and oral argument by Mr. Wehrli.

One appearing before a notary and acknowledging an instrument adopts as his signature his name written on the instrument by some one else. 57 A. L. R. 525; McClendon v. Doe, (Ala.) 25 So. 30; Currier v. Clark, (Ia.) 124 N.W. 622; First National Bank v. Glenn, 77 P. 623; Blaisdell v. Leach, (Calif.) 35 P. 1018; McAllen v. Raphael, (Texas) 96 S.W. 760. The rule applies even where it is claimed that the signature was forged. Chivington v. Colorado Springs Company, (Colo.) 14 P. 212. A certificate of acknowledgment cannot be impeached unless the evidence is clear, cogent and convincing beyond reasonable controversy. 1 C. J. 886, 892, 894, 896 and 899. See note following Ford v. Ford, 7 Am. & Eng. Ann. Cas. 245, 251; Adams v. Smith, 11 Wyo. 200; Houlihan v. Morrissey, (Ill.) 110 N.E. 341; Chaffee v. Hawkins, (Wash.) 157 P. 35; Clegg v. Eustace, (Ida.) 237 P. 438; Sneddon v. Birch, (Ida.) 230 P. 29; Dickinson v. Dickinson, (Ill.) 137 N.E. 468; Posey v. Van Tuyl, (Okla.) 273 P. 867; Davis v. Howard, 50 N.E. 258. The notaries testified that they had no independent recollection of taking the acknowledgments in question, but that the certificates were true and that the plaintiff appeared and acknowledged the execution of the instruments. Linton v. Insurance Company, (C. C. A.) 104 F. 584. A certificate of acknowledgment cannot be impeached except on the ground of fraud, without evidence charging the grantee with notice of the fraud, or the officer taking it with complicity therein. Baldwin v. Snowden, 11 Ohio State Rep. 203. Plaintiff received and retained the benefit of the advances made and under such circumstances, plaintiff is not entitled to relief without making reimbursements to the defendants. 9 C. J. 1207, 1216; 51 C. J. 277, 279. Agency of plaintiff's husband and her ratification were sufficiently pleaded. Davis v. Howard, (Ill.) 50 N.E. 258. It is unnecessary to specifically plead ratification. Bank v. Haun, 30 Wyo. 322; Loan Company v. Jonasen, (S. D.) 79 N.W. 840; Clegg v. Eustace, supra. Retention of the benefits should be a determinative factor in this case against the plaintiff. Bank v. Glenn, (Idaho) 77 P. 623; Finance Corporation v. Credit Company, 41 Wyo. 198; Dresher v. Becker, (Nebr.) 130 N.W. 275; 21 R. C. L. 851. In support of the foregoing, we cite the following cases: Ryan v. Woodin, (Ida.) 75 P. 261; Fitch v. Miller, (Ill.) 65 N.E. 651; Mickle v. Walraven, (Ia.) 60 N.W. 633; Poynter v. Mallory, (Ky.) 45 S.W. 1042; Edgell v. Smith, (W. Va.) 40 S.E. 402; Plant v. Humphries, (W. Va.) 66 S.W. 94. The judgment should be affirmed.

RINER, Justice. KIMBALL, Ch. J., and BLUME, J., concur.

OPINION

RINER, Justice.

This is a proceeding in error brought to review a judgment of the district court of Natrona County, in an action wherein D. L. Shipp, referred to in the record at times as "Dickie L. Shipp," was plaintiff, and Casper Mutual Building and Loan Association, a corporation, Julion Clawson and Charles Anda, Trustees of said Association, and Evah Herncall were defendants. After the judgment was rendered and a motion for a new trial had been overruled, the plaintiff died, and by order the action was revived in the names of the plaintiff in error, Oline Rowray, both as executrix and as the sole beneficiary under plaintiff's will, and they were made parties thereto. Hereinafter the original litigants in the court below will be generally referred to, "Dickie L. Shipp," "D. L. Shipp," as the "plaintiff," the Casper Mutual Building and Loan Association as the "Association," Julion Clawson and Charles Anda as the "Trustees," and Evah Herncall as the "purchaser," except as it may be more convenient to employ their respective names.

The record discloses substantially the following facts necessary to be considered in disposing of the case here: The Association aforesaid, on May 29, 1925, was a mutual building and loan company authorized to do business under the laws of this state at the city of Casper. At that time also the plaintiff was the owner of certain real estate described as the West Half of Lot 7 in Block 41 in Capitol Hill Addition to the city of Casper. About that date the plaintiff's husband, E. Richard Shipp, delivered to said Association a promissory note payable to its order for the sum of Four Thousand Dollars, due on or before June 25, 1934. This note was signed by the husband and above his name was written his wife's name, "Dickie L. Shipp," the obligation being dated May 27, 1925. Accompanying this note was a mortgage upon the real property mentioned above, and also upon Lot 6 in said Block likewise owned by plaintiff, the instrument being of even date with the note aforesaid, and drawn to secure its payment to the Association. This mortgage was also signed by the husband and above his signature appeared in writing his wife's name, "Dickie L. Shipp." The instrument bore on it the names of two witnesses, one of whom was the notary public, George W. Ferguson, an attorney at law, who signed the acknowledgment appended thereto, which recites that:

"On this 11th day of June, A. D. 1925, before me personally appeared Dickie L. Shipp and E. Richard Shipp, wife and husband, to me known to be the persons described in and who executed the foregoing instrument, and acknowledged that they executed the same as their free act and deed, including the release and waiver of the right of homestead, the said wife having been by me fully apprised of her right and the effect of signing and acknowledging the said instrument.

"Given under my hand...