People's Gas Co. v. Fletcher

The opinion of the court was delivered by Porter, J.: The plaintiffs’ main contention is that as to innocent purchasers the certificate of acknowledgment of an instrument regular on its face can not be impeached by the uncorroboratéd testimony of the interested parties. The rule contended for may obtain in a certain class of cases in those states where the act of acknowledgment is regarded as judicial, but manifestly such a rule has no place in Kansas.- In this state the person taking the acknowledgment acts in a ministerial, and not in a judicial, capacity. (Heaton v. Bank, 59 Kan. 281, 289.) Even in those states where the certificate is held to be conclusive of every fact appearing on the face of the certificate which the officer is by law authorized to certify, and where it is held that evidence of what passed at the time of the acknowledgment is inadmissible to impeach the certificate except in case of fraud or imposition, the cer [82] tificate may always be impeached by proof that the party did not in fact appear before the officer certifying to the acknowledgment nor otherwise acknowledge the instrument. (Michener and Wife v. Cavender, 38 Pa. St. 334; Le Mesnager v. Hamilton, 101 Cal. 532; Grider v. American Freehold Land Mortgage Co., 99 Ala. 281; Meyer v. Gossett, 38 Ark. 377; Wheelock v. Cavitt, 91 Tex. 679; Johnston v. Wallace, 53 Miss. 331.) In volume 1 of the Cyclopedia of Law and Procedure, at page 622, it is said: “Where, in fact, the grantor has never appeared before the officer and acknowledged the instrument, evidence to show that the certificate, though regular on its face, is a forgery or an entire fabrication of the officer is admissible, even as against an innocent purchaser for value and without notice.” While the certificate of acknowledgment is entitled to a strong' presumption in favor of its truth, in this state it is only prima facie evidence of the execution of the instrument. (Wilkins v. Moore, 20 Kan. 538; Heil v. Redden, 45 Kan. 562; Heaton v. Bank, 59 Kan. 281.) The following language from the opinion by Mr. Justice Brewer in Wilkins v. Moore, supra, while dictum in that case, is undoubtedly a correct statement of the law: “Of course, the matter is still open for further testimony, either written or oral, for the acknowledgment is not conclusive evidence.” (Page 540.) In section 534 of volume 1 of the second edition of Devlin on Deeds it is said: “The certificate standing by itself, without other proof, is prima facie evidence of all that it rightfully contains. While not conclusive, it is entitled to the utmost consideration.” With respect to the character of proof necessary to overcome the certificate of an acknowledging officer, where the parties have actually appeared and signed an instrument and afterward attempt to contradict the certificate as to what took place, the rule is that the [83] evidence to impeach the acknowledgment must be clear and convincing. (Gabbey v. Forgeus, Adm’r, 38 Kan. 62.) There the wife admitted her signature to the instrument and it was duly acknowledged and certified by a proper officer. It was held that to sustain the defense of duress the burden of proof was on the wife, and that “the genuine signature and duly certified acknowledgment of the mortgage could not be resisted by doubtful and unsatisfactory statements and circumstances; the evidence to impeach them should be strong and convincing.” (Syllabus. See, also, Winston v. Burnell, 44 Kan. 367.) Here the wife denies the execution of the instrument and alleges that she neither signed nor acknowledged it. Her testimony was competent, and stands as the testimony of any other interested witness. The general rule is stated in volume 1 of the Cyclopedia of Law and Procedure, at page 624, as follows: “The testimony of parties to the suit, while carefully scrutinized, is admissible to impeach the certificate and is entitled to the same weight as that of any other interested witness.” Moreover, the testimony of Mrs. Fletcher was not wholly uncorroborated. There were circumstances in connection with it which may have had more or less weight with the court in determining its truth. The husband testified that she was not present when he signed the lease. The original instrument was in evidence and compared with her own signature, and there was a variance in the spelling of her name as it was written in different parts of the instrument and the acknowledgment. On the trial the court called a jury in an advisory capacity and submitted to them certain special questions, and gave- an instruction that the burden was on the plaintiffs to prove the due execution of the lease by the fair weight and preponderance of the evidence. It is claimed that this was error and that the court evi [84] dently misconceived the law, and, in adopting the findings, failed to give proper weight to the evidence. Conceding that the instruction was erroneous, it has been often held that the disposal of the burden of proof is of slight importance, and where all the evidence has been introduced it becomes immaterial where the burden rests. (McCormick v. Holmes, 41 Kan. 265; Milling Co. v. Ellis, 76 Kan. 795.) The procedure followed in this case is a fair illustration. The plaintiffs assumed the burden 'at the outset and offered the evidence of expert witnesses to prove that the signature of Mrs. Fletcher was genuine. The case was tried by the court, with the aid of a jury, and, since all the evidence either side had to offer was introduced, it will be assumed that the court, in adopting the findings of the jury, gave proper weight to all the competent evidence. We have carefully examined the claim of error in the admission of evidence and find nothing which would warrant a reversal. The questions objected to were proper, cross-examination. It is quite apparent that the court attached considerable importance to the defense that the lease was altered after it was signed and acknowledged. Five of the six questions submitted to the jury hinged upon the fact of alteration, and the court adopted the findings,' which were all against the plaintiffs on that issue, which was wholly immaterial if the plaintiffs’ contentions are correct as to the law in' respect to the alteration of written instruments. If it were necessary to decide the question, we- would be inclined to hold with the plaintiffs that since Joseph Fletcher testified that it was his intention at the time he executed the lease, and also the intention of the notary, to have the lease cover the northwest quarter of section 20, and it appeared beyond question that the figure 4 in the typewritten lease was the result of a mere typographical error, the alteration was not such a one as would [85] avoid the instrument, because it was a correction which expressed the intent of both parties and was not a material alteration. (2 Cyc. 148, and cases cited.) There are reasons, however, which render it unnecessary to consider or determine what kind of alterations will avoid a written 'instrument of this character. Irrespective of whether the Fletchers were either or both of them bound by the lease, there still remained the other defense that the plaintiffs had failed to comply with its terms. . They admitted their failure to comply within the time stipulated and sought to avoid the effect thereof by showing facts constituting a waiver and estoppel on the part of the Fletchers. This raised an issue of fact, upon which the evidence was conflicting, the Fletchers contending that they used the gas, not with the intent to ratify the lease, but relying upon the promises of the plaintiffs to have a new and satisfactory léase executed. The court found all the issues in favor of the defendants. If there had been a special finding in favor of the plaintiffs on the question of estoppel, the general finding would have been narrowed down so as to appear conclusively to rest on the defense of alteration. But there is no special finding on that issue, and the plaintiffs neglected to ask the court to make further findings or to modify those made. They are therefore bound by the findings which the court did make. (Cowling v. Greenleaf, 33 Kan. 570; Shuler v. Lashhorn, 67 Kan. 694.) There was evidence sufficient to support a finding that the Fletchers were not estopped, and a finding to this effect is necessarily included in the general finding of the court, from which there is no escape for the plaintiffs. The judgment is affirmed.