Livings v. Wiler

Mr. Chief Justice Caton delivered the opinion of the Court: The principal question in this case, and the one to which we have directed most of our attention, is, whether the defendant executed the note and mortgage, or if she did not execute them, then had she so adopted them as to be bound by them. Most certainly, the testimony, when carefully and maturely considered, is of a very extraordinary character. The principal witness for the defense is placed in a very awkward position, to say the least. There is no donbt that his signature to the mortgage as a witness is genuine, and he admits that as such subscribing witness he once, at least, proved the execntion of the mortgage before the notary public, and we have very little doubt that he had previously done the same thing before the justice of the peace. And yet he expresses the confident opinion that he never subscribed the mortgage as a witness, knowing that it was such mortgage. And, also, he thinks that the name of the defendant to the mortgage is not her signature. We hardly know what to make of such a witness. Either his simplicity is very great or his recklessness is very manifest. Either he is very confiding and very honest, or he is something quite the reverse. When produced in evidence, there was upon the mortgage the legal statutory proof of its due execution, and it was for the defendant to prove that it was not genuine. The evidence on this point is far from conclusive, or even satisfactory. The defendant was in the habit of writing but little, and manifestly, not enough to establish or acquire any marked characteristics to her signature, and in such cases it is most difficult to either prove or disprove the genuineness of a signature. Hence, as might be expected, most of the witnesses seem to he in doubt whether this is her signature or not, though a majority of them express the opinion that it is not. If, however, the witnesses are in doubt, it is not remarkable that we, after examining all the testimony in the case with the most earnest solicitude, should be also laboring under the same embarrassment. Upon the evidence, the court below was of opinion that the mortgage was in truth executed by the defendant, and were we compelled to pass upon this question, we should hesitate long before reversing that decision. But be that as it may, beyond all question, she has affirmed and adopted the mortgage as her own, and is to-day affirming and adopting, it as her own, in legal effect. Lay aside her signature to the paper asking to have the time for payment extended, as having been executed under a misapprehension as to its effect, and lay aside the long time that elapsed while the proceeds of the mortgage stood to her credit in the accounts rendered by Joy and Frisbie, her bankers, for the reason that she did not examine the items carefully, but looked only at the footing; lay aside even her permitting the proceeds of the mortgage to stand to her credit on the books of Joy & Frisbie, without objection, even after the first of November, 1860, when she, beyond doubt or question, knew all about it, as much as she does to-day; lay all these evidences of affirmance and adoption aside, we say, and still we have the insurmountable, the conclusive fact, that the defendant has received and appropriated the proceeds of this mortgage to her own use, just as much as if. she had received the proceeds in gold, and placed it in her pocket; and that too, after she knew all about it, and even after she had denied and protested that it was not her mortgage, hut was a forgery. After she knew all this, and when she knew that the proceeds of the mortgage stood to her credit in her account against Joy & Frisbie, she sued them upon that account, and obtained a judgment against them for this account thus including the proceeds of this mortgage. This was a complete and conclusive appropriation of the proceeds, and an adoption of the mortgage, as much as if she had personally received the cash and used it herself. Suppose a negotiable note had been received for the mortgage instead of the money, and she had accepted the note and put it in circulation, well knowing whence it came. Even this would have been as much an appropriation of the proceeds and an adoption of the mortgage as the receipt and use of the money. Or suppose she had sued, and obtained a judgment upon such a note. Should she succeed in this defensé and defeat the mortgage, this judgment against Joy & Frisbie still remains in full force, and she may, and, indeed, the legal presumption is that she will collect it; then she will enjoy the proceeds of the mortgage and avoid its responsibilities. If this was a forgery, she has approved and adopted it, and is thereby as much bound by it as if she had originally executed it. The decree is affirmed. Decree affirmed.