Thompson v. Kinard

Hart, J. (after stating the facts). It is first contended that both the deed executed by J. T. Kinard as attorney in fact for Lizzie Oliver to Lula Payne, and the power of attorney executed by Lizzie Oliver to J. T. Kinard were forgeries. The burden of proof rests upon the person denying that he signed a deed or acknowledged it to show by a preponderance of the evidence that his signature is a forgery. Polk v. Brown, 117 Ark. 321, and Miles v. Jerry, 158 Ark. 314. To sustain the burden of proof in this respect, the plaintiff testified that her daughter, Lizzie Oliver, did not live in El Doardo, Arkansas, in June, 1921, and that her daughter could neither read nor write. The plaintiff and her son both testified to these facts. Two other witnesses also testified that Lizzie Oliver could neither read nor write. The power of attorney which is claimed to be a forgery purports to have been signed on the 14th day of June, 1921, and to Rave been acknowledged on tbe same day in Union County before W. J. Kinard, as notary public. Opposed to this testimony on tbe part of the plaintiff is tbe testimony of W. J. Kinard to tbe fact that Lizzie Oliver personally appeared before him on the, day in question and signed and acknowledged tbe power of attorney. This testimony is corroborated by that of bis father, J. T. Kinard. The latter testified that be wrote tbe power of attorney and then gave it to Lizzie Oliver to be carried by her to bis son’s office and there acknowledged. He said that Lizzie Oliver left bis office with the power of attorney and in a short time came back with it signed by herself with a certificate of acknowledgment by W. J. Kinard, a notary public. The witness stated further that, while Lizzie Oliver could not read nor write, during tbe latter years of her life she bad learned to sign her own name. Neither J. T. Kinard nor W. J. Kinard claim any interest in the lot in controversy, nor do they ever claim to have bad any interest in it. Their testimony is corroborated by the fact that pursuant to the power given, J. T. Kinard executed a deed to said lot to Lula Payne and paid that part of the purchase money received by him to Lizzie Oliver and delivered to her fourteen notes for $10 each given for tire balance of the purchase money. These notes were transferred by Lizzie Oliver to C. f>. Barton, and Barton testified that he paid value received to her for them. Lula Payne testified that she took possession of the lot in question pursuant to her deed, and built a house on it. She lived in her house for a time with the knowledge of Lizzie Oliver and of the plaintiff. Finally she had a row with the plaintiff about hanging some things on the wire fence between their homes, and this, to her mind, caused the lawsuit. The chancellor found the issues on the question of forgery of the name of Lizzie Oliver to the power of attorney in favor of the defendants, and it cannot be said that bis finding is against the preponderance of tbe evidence. On tbe- question of tbe forging of tbe name of J. T. Kinard to tbe deed but little need be said. Both be and bis son before whom be acknowledged tbe deed testified that be signed tbe deed and acknowledged it before bis son. There is no evidence in tbe record to contradict tbeir testimony in this respect. It is next contended that tbe decree should be reversed because tbe language of tbe power of attorney is not broad enough to authorize J. T. Kinard to execute the deed in question for Lizzie Oliver. Tbe power of attorney is set out in our statement of facts. It will be noted that Lizzie Alderson appoints J. T. Kinard her attorney in fact to execute deeds to both real and personal property in as lawful manner as she could do. ¥e think this language is broad enough to show that J. T. Kinard was given tbe authority to execute tbe deed in question. Tbe undisputed evidence shows that tbe daughter of the plaintiff who executed tbe power of attorney was known under various names. She was called Lizzie Oliver, Lizzie Alderson and Lizzie Turner. Moreover, she ratified tbe deed executed by J. T. Kinard for her by receiving tbe cash payment and accepting tbe notes given for tbe balance of tbe purchase money. It follows that the decree of tbe chancery court was correct, and must be affirmed.