Jackson ex dem. Hopkins v. Leek

By the Court, Nelson, Ch. J. The principal question involved in this case, and one probably which may permanently affect the claims of the respective parties to the lot, is this: whether it is competent for a grantor to impeach the genuineness or validity of a deed purporting to have been executed and delivered by him, so as to prejudice the rights of those claiming under it: in other words to prove .it forged. It is quite probable that the law, as laid down at the trial, was not intended to be pushed to the extent of affirming the negative of the above proposition ; but after full consideration, I am unable to understand it satisfactorily to myself in a mere qualified sense. The position [341] was taken by and ruled in favor of the counsel for the plaintiff, and the only deed that had been at all impeached which he was concerned to uphold, was the one from Whitehead to Scudder, in respect to which the grantor had sworn that he neither received any consideration for it, nor had he ever executed or delivered it. Unless then we are to assume the proposition was put forth in the abstract, and without having any particular connection with the facts in the case, which I think we ought not to do under the circumstances, we are compelled to the conclusion that it was intended to be applied to the evidence given of the non-execution of this deed, and if unsound, that thereby injustice may have been done to the defendant. If it is thus to be understood and applied, it was properly conceded on the argument that the decision was erroneous. The rule, as contended for at the trial, was once supposed to exist in this state in cases of indictment for forgery, but it is now settled otherwise, 6 Cowen, 27, as it has been in England by act of parliament. 9 Geo. 4, c. 32, § 3. If the proposition is to be understood as applying only to the proof of want of consideration for the deed to Scudder, assuming it to be genuine, then the decision was in effect right; for admitting the fact to be so, the consideration expressed on the face of it was enough to pass the title ; and even if none were actually paid, or agreed to be paid, the deed would still be valid as between the parties and those claiming under them. If this deed were considered genuine, there was sufficient evidence of notice of its existence to the agent who procured the second one to be executed, to warrant the jury in finding the fact; and then, though first recorded, it would not prevail over the elder deed. 17 Wendell, 25, and cases there cited. Assuming the first deed of Whitehead to be á forgery, so as to allow operation and effect to the second made to Van Riper, there was no such adverse holding on the part of Hopkins as would necessarily avoid it; nor such conclusive evidence that the defendant entered under a title derived from Hopkins as would necessarily preclude him from subsequently acquiring title from a third person. These were [342] questions arising upon the facts fairly open for the consideration of the jury under the charge of the court. There is nothing in the position, urged on the argument, that the wife of the plaintiff should have been made a lessor of the plaintiff, on the ground of being a joint grantee. The husband is tenant for life jure uxoris in her interest. 16 Johns. R. 116. 15 Wendell, 615. 2 Black. Com. 433. Co. Litt. 351, a. In this case, if he should convey the estate, it would survive to the wife in case she outlived him. Id. 5 T. R. 652. 8 Cowen, 277. New trial granted, costs to abide event.