Blaisdell v. Leach

Harrison, J. The defendant, Bailey K. Leach, borrowed one thousand dollars from the plaintiff July 18, 1891, and, to secure the payment thereof, executed to him a mortgage upon certain lands which appeared by the record to have been conveyed to him by his wife, Mattie A. Leach. This action was brought to foreclose the mortgage against husband and wife, the plaintiff alleging in his complaint that the wife claims some interest in the mortgaged lands, but that her •claim was subject to the lien of his mortgage. Mattie A. Leach filed a separate answer, alleging that she was the sole owner of the lands, and that her husband had never had any interest therein. Upon the trial of these issues the court found that the wife’s signature to the deed under which the husband claimed title was a forgery, but that she had acknowledged its execution to the notary public, and that the conveyance had been placed on record with the notary’s certificate of her acknowledgment indorsed thereon. Ho question was made of the good faith of the plaintiff in loaning the money, and the court held that he was entitled to rely .upon the record evidence of title, and rendered judgment for the foreclosure of the mortgage. From this judgment the defendant, Mattie A. Leach, has appealed.

[408]The record discloses the following facts connected with the appellant’s acknowledgment of the conveyance. It appears that on the morning of the 16th of .July, the appellant had signed a lease of certain property and given it to her husband, and that in the afternoon of that day her husband handed the deed in question to the notary, with his wife’s name already signed thereto, and requested him to go with him to his house and take her acknowledgment. The notary testified that when he and the husband reached the house he explained to Mrs. Leach the object of his visit, and “got up from my chair, and walked over to her with the deed in my hand, passed it to her and took my seat again, and, as I suppose, she read it. I don’t know. She peered over it. I don’t know whether she read it or not. I got up then and' asked her if it was her signature, and she acknowledged the execution of that instrument. She said she did, and I placed my seal to it and handed it to Mr. Leach.” Mrs. Leach contradicts the notary in some details, but the findings of the court must be accepted as determinative of the facts that her signature had been placed to the instrument without her knowledge or consent, and that the facts stated in the notary’s certificate are correct. Mrs. Leach does not in her testimony say that she then questioned the genuineness of her signature, but that the instrument did not appear to her to be the same one as-that upon which she had placed it. Taking the most favorable view for the appellant, it would appear that after she had signed the lease and given it to her husband, he substituted for it the deed to himself with her name affixed thereto, and that she paid but slight attention to the instrument when it was presented to her for her acknowledgment, and admitted to the notary that it was her signature.