Forbes v. Higginbotham

The opinion of the court was delivered by Valentine, J. :■ The first and principal question involved in this case is, whether the fourth finding of fact made by the court below is sustained by sufficient evidence or not. On the trial of the case a deed of conveyance was introduced in evidence, answering to the description of the deed described in the fourth finding of fact in every,particulai’, except that prima facie it purports to have been executed on August’30, 1868, instead of April 30,1867. If such deed was in fact executed on April 30,1867, then the finding is correct, and no valid objection can be urged against the regularity or validity of the deed as a deed. But if it was executed on August 30,1868, then it must have been a forgery so far as one of the grantors, Je-Mahn is concerned, for he was dead at that time, although it may have been the valid deed of, and may have been executed and acknowledged by the other grantor, Louisa Je-Mahn, for she was still alive and as competent to éxecute a deed as she ever was. Both this deed and the deed described in the fifth finding of the court below, to wit, a deed executed for the same land on April 30, 1867, by the grantees mentioned in the first deed, George L. Young and Josetta Young his wife, to John Higginbotham, were introduced in evidence, and also A. R. Button, the justice of the peace before whom these' deeds were acknowledged, was introduced as a witness on the trial. So also was Higginbotham. But for some unexplained reason neither Young nor his wife, nor Louisa Je-Mahn, nor Ben Bayne, nor B. T. Payne, was introduced as a witness in the case by either party, nor was the testimony of any one of them given on the trial. Payne was the person who wrote these deeds, or did the writing in filling them up, and who witnessed the Je-Mahn deed and was present when it was acknowledged. The evidence introduced on the trial shows that where the [100] dates occurred in the Je-Mahn deed such dates were originally April 30,1867; but they had afterward been erased or partially erased, and the dates August 30,1868, were written over them. The plaintiff claims that the dates were altered before the execution of the deed, and therefore that it was not executed until August 30, 1868, and therefore that the deed was necessarily void and a forgery as to Je-Mahn, who was then dead. He also claims that it was a forgery as to Louisa Je-Mahn; but there is no reason why it should be considered a forgery as to her, except Je-Mahn’s death, and she was then married to Eli Shearer. [101] ^ x ^ „ finding'sua-l tamed. [100] On the other side, the defendant claims that the deed was properly executed on April 30, 1867, and that all the changes made in the deed were made after its execution and delivery to the Youngs, and after Young and wife’s deed to Higginbotham had been executed and delivered to him. There is no positive evidence as to when these changes were made, and therefore the whole thing is left for inference from the surrounding facts and circumstances. That the grantees mentioned in this deed, George L. Young and Josetta Young, on April 30,1867, executed their deed for the same land to Higginbotham, cannot be questioned; and it would hardly seem probable that Higginbotham would want such a deed unless he believed that Young and wife had at that time or prior thereto received their deed from Je-Mahn and wife. Higginbotham’s deed from the Youngs would be worth nothing except for the Je-Mahn deed to the Youngs. Both of these deeds were introduced in evidence, and the court below had an opportunity of seeing them. The court could see whether the same blanks were used for both deeds, or not; whether the same person had written or filled up both deeds, or not; whether the two deeds had been written or filled up from the same ink, or not. In the deed executed by George L. Young and wife, they wrote their own signatures. In the deed executed by Je-Mahn and wife, their marks only were made. Both deeds were acknowledged before A. R. Button, a justice of the peace of Shawnee county, and he wrote his own sig [101] nature. The court below had an opportunity of seeing whether all these signatures and marks were made from the same ink, or not, and also whether the ink used in making these signatures and marks was the same kind of ink that was used in filling up the deeds originally, or in making the changes afterward. If the changes were made by using a different kind of ink from that used in making these signatures and marks, the inference would be strong that the changes were made after the execution of the deeds. If Je-Mahn had been living on August 30, 1868, the presumption would be that the changes were made before the execution of the deed; but there is also a presumption, and a strong presumption, in favor of the validity and truthfulness of the acknowledgment attached to the deed. In the acknowledgment the justice of the peace, Button, certifies: “Personally came Je-Mahn and his wife Louisa, to me personally known to' be the identical persons,” etc., who executed the deed. Now as Je-Mahn was dead on August 30, 1868, but was living on April 30, 1867, there would be a strong presumption on tLat account, and in favor of the validity and truthfulness of the acknowledgment, that the acknowledgment was in fact taken on April 30, 1867, and not on August 30, 1868. Besides, the justice of the peace had seen Je-Mahn — or “Steamboat,” as he was sometimes called — and also slightly knew his wife, Louisa, and probably could not have been mistaken as to their identity. It would seem strange that he would or could have beeu mistaken on August 30, 1868, as to Louisa, and should have taken an acknowledgment from some other woman who was there pretending to represent Louisa, when in fact he had, only the April before, performed the marriage ceremony in marrying her to Eli Shearer. While the justice’s memory upon this whole subject is not very strong, yet he believes that Je-Mahn and Louisa Je-Mahn did in fact appear before him when the acknowledgment was taken; and as before stated, this could not have so occurred, so far as Je-Mahn is concerned, on August 30, 1868, but it could have so occurred on April 30, 1867. As we .understand the case, it [102] could be of but little benefit to the plaintiff to suppose that Louisa and some other person pretending to be Je-Mahn appeared before the justice of the peace on August 30, 1868, for at that time, as Je-Mahn was dead, and as she was his wife at the time of his death, she took one undivided half of his real estate, and could convey such undivided half of the property. As to the other half, see finding of fact No. 11. It does not seem that the Pottawatomie Indians are very particular with reference to names. Louisa’s original name was Louisa Pa-ya. She married a man by the name of Wash-kono-bee. He died, and then she married Je-Mahn. He died, and then she married Shearer. Yet one of her sons, born while she was the wife of Je-Mahn, executed a deed to the plaintiff, Forbes, while she was the wife of Shearer, executing such deed in the name of Peter Wash-ko-no-bee, the surname of his mother’s first husband, and for land in which he could have no possible interest unless he was the son of Je-Mahn. The theory of the plaintiff is, that the deed from Je-Mahn and wife to Young and wife is an absolute forgery. But if so, why did the persons forging the same, in 1868, first use the dates April 30, 1867; and why did they afterwardchange this date to August 30,1868 ? Unquestionably, Ben Payne, or B. T. Payne, filled up the deed claimed to be a forgery, and also witnessed its execution, and he possibly also filled up the deed executed by Young and wife to Higginbotham. Now what possible motive or interest could Payne have had in forging the deed in question? Besides, it appears that at the time the deed was acknowledged, Young and Payne and several others were present. Now if the deed was actually a forgery, why should the parties forging the same have obtained its acknowledgment before such a number of people? Would they not have attempted to accomplish this result by more secret methods? Probably the true theory of the case is this: The two deeds were executed and acknowledged at the same time. They were first filled up at the office of Payne or Young, and by Payne, and then all the parties — Payne, and Young and wife, and Je-Mahn and wife, and [103] possibly Higginbotham, and perhaps others — went before the justice of the peace, and then and there both deeds were signed and acknowledged, and the acknowledgments certified to by the justice, and the deeds delivered. The deed to Higginbotham was probably at once delivered to him, or if he was not present, then sent to him; and the one executed to Young and wife was probably then delivered to them, and retained by them until after August 21, 1868, when the patent was issued to Je-Mahn, and then Young or some other person thought that the deed executed to Young and wife should bear date subsequent to the date of the patent, and changed the dates of the deed so as to make it appear that it was executed after the date of the patent; and then both the deed and the patent were filed with the register of deeds for record at the same time, to wit, on September 17, 1868. Higginbotham never received this deed from Je-Mahn and wife to Young and wife until after it was recorded, and he had nothing to do with making any of the changes. It does not appear from anything in the case that any person had any real interest in making these changes, unless possibly Young and wife had. It may have been supposed that the deed would not be good unless it was dated subsequently to the date of the patent, and that unless the deed was good Young and wife would be liable on their covenants contained in their deed to Higginbotham ; for their deed to Higginbotham was a general warranty deed, with all the usual covenants. But as Higginbotham had already purchased the property from Young and wife, and had obtained his deed from them, any change of the deed from Je-Mahn and wife to Young and wife after that time, and without Higginbotham’s consent or knowledge, could not affect Higginbotham’s title. Presumptively, Higginbotham was an innocent, honest and bona fide purchaser of the property at the time he obtained his deed from Young and wife. The consideration expressed in that deed is $600, and there is nothing in all the case tending to show that such was not the real consideration. Higginbotham also took the actual possession of the property in controversy in the fall of 1880, [104] and had the quiet and undisturbed actual possession thereof up to the commencement of this action, which was on August 4, 1885; and during that time he made lasting and valuable improvements thereon. This we think unquestionably gave to him the absolute title to the property, under § 3 of chapter 79 of the Laws of 1874, even if he did not have such title before. (Gen. Stat. of 1889, ¶3305.) This section relates to titles procured to Indian lands by a purchaser in good faith, for a valuable consideration, from the Indian himself, or from his heirs or his or their grantees; and the section reads as follows: “Seo. 3. That three years’ quiet, undisturbed, actual possession of any such land by any, purchaser thereof in good faith as aforesaid, under color of title, shall be a complete bar to any action for the recovery of said lands by the holders of any adverse title to the same, and such possession shall be deemed to vest in the possessor a full and complete title to the same in fee simple.” mi title in aefendant. After the patent was issued by the United States, and after all the title had passed from the United States to Je-Mahn’s heirs or grantees, then the limitation for the commencement of actions contained in the aforesaid section had full opportunity to operate, provided, of course, that the purchaser took the actual possession of the property; and Higginbotham in this case did take the actual possession of the property in 1880, and thereby brought this limitation into active operation, and it so operated before this action was commenced as to rally and completely bar all ac-J L . . tion founded upon any adverse title. This view in no way conflicts with the view taken in the case of McGannon v. Straightledge, 32 Kas. 524. It is perhaps unnecessary to extend this opinion farther, for what we have already decided will give to Higginbotham the title to the property in controversy, and will affirm the judgment of the court below. But Higginbotham has other and further muniments of title. He has the deed of Louisa Shearer, formerly Louisa Je-Mahn, executed on July 23,1880, [105] and also the deed of the guardian of the two children of Je-Mahn, executed on August 21, 1880; and he took the actual possession of the property under these two deeds as well as under the deeds from Je-Mahn and wife to Young and wife and from Young and wife to himself. The judgment of the court below will be affirmed. All the Justices concurring.