Steptoe v. Mason, 12795
| Decision Date | 03 March 1970 |
| Docket Number | No. 12795,12795 |
| Citation | 153 W.Va. 783,172 S.E.2d 587 |
| Court | West Virginia Supreme Court |
| Parties | Robert M. STEPTOE, Administrator v. Clara A. MASON et al. |
Syllabus by the Court
1. A motion for a directed verdict must be made before the trial court and passed on by the trial court in accordance with the provision of Rule 50(b) R.C.P., and if this is not so done, such motion will not be considered by an appellate court on appeal.
2. In a case where it is proved that a purported 'original' deed is a forgery and there is evidence that other deeds claimed by them same grantee to have come from the same grantor in approximately the same period of time are likewise forgeries, the evidence relating to all the forged deeds, along with other relevant evidence, may be considered by the jury to determine the genuineness of a recorded deed in the office of a county clerk which bears a strong resemblance to the forged 'original' deed but which was typewritten into the records thereby making it impossible to examine the signatures of the grantor and notary on the recorded deed.
3. Nothing in the West Virginia Rules of Civil Procedure prevents an oral motion for a new trial from being made during the trial and before the entry of the judgment, but whether the motion be oral or in writing, grounds for such motion must be stated with particularity.
Carr, Bonner, O'Connell, Kaplan & Scott, Louis M. Kaplan, Jerome S. Berg, Washington, D.C., Pauley, Curry & Sovick, George P. Sovick, Jr., Charleston, for appellants.
Nichols & Skinner, John C. Skinner, Jr., Charles Town, for appellee.
This is an appeal by John C. Studt and Elizabeth Studt from a judgment of the Circuit Court of Berkeley County of April 8, 1968, holding a deed in the chain of title prior to Studts to be a forgery. The appeal was granted by this Court on December 16, 1968. The judgment of the Circuit Court cancelled and annulled a total of nine deeds, but only three of the deeds actually involve the appellants' title in this appeal. Two of the deeds in question are purported conveyances from Johnny L. Mason to J. H. Messick, and the third is from Messick to the appellants, Studts. Actually, the two deeds from Mason to Messick are purported to be the same deed, as one is claimed to be the original and one is claimed to be the copy of the original that was recorded in the office of the Clerk of the County Court of Berkeley County.
The remaining six deeds involve land purported to have been conveyed by Mason to Messick, which were then conveyed by Messick to a Chester Minghini, who did not appeal from the judgment annulling his deeds, and the judgment is final as to those deeds. However, the matter of the forgery of all the deeds from Mason to Messick is related to and may be considered in connection with the deeds involved in this appeal.
Johnny Lemon Mason died on May 15, 1963, leaving according to records in said Clerk's office at the time of his death about 503 acres of land, which the administrator of his estate, Robert M. Steptoe, described in the complaint filed May 13, 1964, in this suit as belonging to the decedent. However, on August 15, 1963, Messick had presented to the Clerk of the Berkeley County Court a deed from Mason which the Clerk recorded and which is involved in this appeal. By this deed, if valid, certain lands listed in the complaint might have been removed from the estate. The date of the deed was March 15, 1963, and the acknowledgment of the grantor taken by A. H. Shipper, a Notary Public, was dated August 15, 1963, three months after the grantor, Mason, died. Likewise, the acknowledgment incorrectly gave the date of the deed as August 15, 1963. Mr. Shipper apparently did not appear at the trial and no further reference to him is contained in the record. We, therefore, have no explanation in the record as to why the anomaly in dates occurred.
On June 10, 1963, Messick also presented and had recorded a deed from Mason conveying four acres, which he later conveyed to Minghini. This deed was dated May 11, 1963, four days before Mason died, and the acknowledgment by a notary was dated the same day. The description of the four acre tract in this deed had been taken verbatim from a plat prepared from a survey made by T. J. Snyder which was recorded on June 7, 1963, about three weeks after Mason died. A notation contained on the plat indicated it was made after the death of Mason.
After Mason's estate was appraised, the administrator ascertained that there were not enough assets to pay his debts and instituted the suit on May 13 or 14, 1964, to subject the real estate to discharging the debts or so much thereof as necessary to do so. The complaint alleged that the deed in question dated March 15, 1963, was ambiguous and prayed that it be reformed or rescinded. The heirs, creditors, and Messick were made parties to the suit, and the Studts intervened, after which a cross-claim was filed by the heirs against Messick and the Studts in which the heirs claimed that the deed in question was a forgery. The plaintiff then amended his bill to charge that the acknowledgment was defective.
The case as now on appeal is a second trial of the issues. The jury returned a verdict in the first trial that the deeds were not forgeries but upon proper motion and good grounds, the verdicts were set aside and a new trial granted. About three weeks before the first trial in 1967 Messick stated that the original deed of March 15, 1963, had been destroyed by fire when his house burned, but a few days later still before the first trial started, he produced what he claimed to be the original of the recorded deed With an acknowledgment dated March 15, 1963, instead of August 15, 1963, as the clerk's record showed it. After the first trial, when the cross-claimants had the opportunity to have the deed examined, it was examined by Charles A. Appel, Jr., a nationally known examiner of questioned documents. It was upon the basis of an affidavit of Appel that he found the deed to be a forgery and of an affidavit by the Martinsburg fire chief that the deed, if placed where Messick said it had been, could not have been protected from the fire and from being destroyed, that a new trial was granted.
At the second trial the evidence with regard to the forgery of the deed claimed by Messick to be the original was presented, together with evidence as to other deeds from Mason in which he was grantee, and the jury returned verdicts that the deeds were forgeries. There is no question from the evidence but that this deed of March 15, 1963, claimed to be the original was an outright forgery, and that it was not the same deed which had been recorded on August 15, 1963, three months after the grantor, Mason, died. The fourth page of the 'or...
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