Walker v. Logan

Jackson, Chief Justice. On the trial of an issue, whether a deed was forged or not, under section 2712 of the Code, the jury found that it was a forgery, and thereupon the plaintiff in error made a motion for a new trial, the denial of which, on two grounds in that motion specified, brings the case here for review. The verdict that the deed is a forgery and not the genuine deed of the grantor is supported by the evidence. The fact that, though executed in 1835, it was not recorded till 1883—nearly a half century thereafter—is a very strong evidence or circumstance of want of genuineness; and the fact that the grantor could not write his name, which is in writing on the deed, is stronger—I had almost • said conclusive—evidence of the forgery; and the additional evidence that he swears by interrogatories, signed only by his cross-mark, that he did not sign or make any such deed, would seem to clinch the truth of the verdict which pronounced it a forgery. On the other side, to overcome this overwhelming evidence, is testimony that the witnesses delivering it on the stand believe that the handwriting of the two dead witnesses to the deed is genuine. It is a feather weighing in scales against a ton of iron. 2. If it had been error to exclude the grant from the state, with the certificate of the secretary of state thereon a new trial ought not to have been granted on account of that error, because it could not have changed the verdict on the issue of forgery of the deed. But it was not error, because the certificate of the secretary of state was not a [761] certificate of aught in his office recorded therein, but a mere expression of opinion that the grant from the state was genuine. It seems that he looked at the grant itself, and from its appearance thought it genuine. We know of no law which allows such an opinion by the secretary of state, certified to merely, and not sworn to as a witness, to be evidence in any court on any trial. But we repeat that the genuineness of the grant was not the issue, but that of the deed; and the fact that he, who was the grantee in the deed, was in possession of a grant from the state, believed by the secretary of state to be genuine, could hardly overcome the oath of the grantor, the fact that he could not write his name, and the failure to put the deed on record till all the witnesses to it were dead, and only just before the suit for the land, nearly half century after the deed was made. Really, it does seem that the counsel for defendant in error was right when he said that the facts demanded the verdict. Judgment affirmed.