Gustine v. Westenberger

Opinion by Mr. Justice Brown, The defense in 'this case was that the mortgage was a forgery, and, under evidence that could not fairly have led to any other conclusion, the jury so found. On this appeal the chief complaint of the appellant is that the judge failed in his charge to give due weight to the notary’s certificate of acknowledgment. The mortgage was offered in evidence with no other proof of its execution than this certificate. It was admitted by the court as the duly executed act and deed of the appellee, and, but for the defense that followed, judgment would have been directed for the appellant. [459] The case, as presented to the jury under • uncontradicted evidence, showed that the mortgage had been executed and acknowledged by one who had personated the appellee. Called as a witness in his own behalf, the latter testified that he had not executed it, had never appeared before the notary public and that the first time he saw it was when the case was called for trial at a previous term of court. His wife, properly designated by the trial judge as a bad woman, had induced her brother to personate her husband in executing the mortgage and acknowledging it before the notary. That officer, who was one of the witnesses to the execution of the mortgage, was unable to identify the appellee as the man who had signed and acknowledged it before him. Albert W. James, the other witness to the execution of it, accompanied the man who signed it to the notary’s office and testified positively that the appellee was not the one who had signed and acknowledged it in his presence. Another witness, Albert James, the real estate agent to whom application was made for the loan, stated with equal positiveness that the appellee was not the man who had executed the mortgage in his office. Samuel Bunting, who finally negotiated the loan and saw the mortgage signed, testified in the same positive manner that the appellee was not the person who executed it. The admission of the wife of the appellee on the trial was that she needed money and asked her brother to go to the office of Mr. James and personate her husband in the execution of the mortgage, believing that she would be able to repay the loan herself. Under this state of facts the court could not have instructed the jury to give to the certificate of the notary the weight which counsel for appellant insist should have been attached to it: Michener and Wife v. Cavender, 38 Pa. 334; Reineman v. Moon, 12 Pitts. L. J. (N. S.) 167; Smith, Executrix, v. Markland et al., 000 Pa. 000. The case is not one of a certificate of a notary before whom the real mortgagor actually appeared and an effort is made to contradict that to which the officer certifies; if it were, some of the many cases cited might apply. The excluded offers of the plaintiff which are the subjects of the eleventh, twelfth and thirteenth assignments of error were [460] properly overruled, for the reason given by the court in sustaining the objections to them. As to the third and last position of the appellant, that she ought to recover because the appellee is answerable for the torts of his wife, we need only say we know of no rule of law that ever permitted a husband’s property to be taken from him on a deed forged by his wife, or the forgery of which was procured by her. Since the passage of the Act of June 8, 1893, P. L. 344, a married woman may be sued civilly in all respects and in any. form of action with the same effect and results and consequences as an unmarried person, except that she may not be arrested or imprisoned for her torts. Under that act she, and not her husband, is-liable in damages for her torts. The assignments of error are all overruled and the judgment is affirmed.