Bouvier-Iaeger Coal Land Co. v. Sypher

KFBLER, District Judge (after stating the facts, as above). The bill prays that the deed of November 10, 1858, may be canceled as a forgery, and as a cloud upon the title of complainant. It is admitted that, except for said deed, the complainant has title to the land in con troversy, and it is also admitted, in the answers of the defendants, Sypher and Cornelia Herman, that the complainant up to 1906 or 1907 had possession of and exercised acts of ownership over the lands involved, and received income therefrom. After the long and detailed statement made, I do not feel it necessary to do more than indicate very briefly my reasons for deciding this case in favor of the plaintiff. .These reasons group themselves into those that are based upon in-dicia that the deed of November 10, 1858, is, as alleged, a forgery, and those that go to show that, even if not a forgery, it was never completed by valid delivery, and hence is invalid as a source of title, and should be canceled under the prayer for relief contained in the bill. And the indicia of forgery group themselves into those which are evidenced by the deed itself (or, rather, its record, as the paper itself is not produced, and the defendants disclaim any knowledge whatever about it), and those evidenced by other facts or testimony. Among the indicia of the first class I may name:' (1) In view of the state of the proved and admitted facts as to the title of the lands embraced in the two Robert Morris patents for 320,-000 acres and 480,000 acres at the date of the purported execution of this deed, to wit: (a) That Thomas Beck, at that time and for long prior thereto, had no interest therein; he having long theretofore received a deed for his 50,000 acres described by metes and bounds, and having prior to 1850 conveyed the same to H. Styles or J. A. Huber, as shown in the agreement of December 7, 1850; and > [659] (b) That David S. Hollister, at the date of said deed, had no interest in said land, having parted with his interest therein'to Edwin C. Searles and Oakes Terrill by assignment, and the Searles interest having been assigned to Richard Warren prior to March 9, 1853, and all of the Hollister interest having been actually conveyed by Bouvier and wife by metes and bounds by the deeds dated March 9, 1853, to Oakes Terrill and Richard Warren, respectively. It is a matter throwing the gravest doubt upon the authenticity of this deed that Thomas Beck and David S. Hollister should have been named as grantors therein. . Both Michael Bouvier, the remaining grantor, and John Herman, the purported grantee, as well as Beck and Hollister themselves, well knew that the two latter persons had no interest whatever in the lands mentioned in the deed, and that their former interests were owned in severalty by Styles or Huber, Terrill, and Warren, and, as to those interests, all the grantors knew they were conveying nothing, and the grantee knew he was receiving nothing. To hold this deed as other than a forgery convicts Beck and Hollister of attempted fraud, and Bouvier and Herman of participation therein. (2) The fact that David S. Hollister is described in the deed as “unmarried” indicates that the parties who prepared this deed were not familiar with the facts, as in the trust deed made October 16, 1847, by Herman, Hollister, and Eustache Bouvier to Michael Bouvier and Thomas Rawlings, said Hollister is joined by “Mary Ann Hollister,” his wife, and, while there is nothing in the record to show that she continued in life to the date of this deed, his description as “unmarried” does not comport with the facts. (3) The apparent ignorance of the existence of the Harman survey, the Bouvier section deeds, and all of the changes of ownership from undivided interests to definite ownership of tracts by metes and bounds. In order to credit the recitals in this deed with common honesty, it is necessary to predicate to the scrivener and to the parties ignorance of these various changes; and this, as the statement shows, cannot be done as to any of the parties to this deed. John Herman caused the Harman survey to be made and received his two deeds for 63,000 acres and 17,850 acres, respectively. Michael Bouvier executed those deeds, and two others to Terrill and Warren for the Hollister interest. (4) The careless and faulty wording of the deed itself, as compared with the extremely careful and painstaking deeds theretofore made by Michael Bouvier in all of his transactions concerning these same lands, all of which former deeds were evidently the handiwork of expert conveyancers. (5) The astounding and unexplained and seemingly inexplicable fact that this deed, purporting to be made and signed by David S. Hollister, Michael Bouvier, and Louisa C., ’his wife, all three being residents of the city of Philadelphia, should have been carried to the village of Independence, Kenton county, Ky., 14 or 15 miles from the city of Cincinnati, and 11 or 12 miles from the railroad, to be acknowledged. Every other deed made by either of the three parties named was acknowledged in the city of their residence. [660] (6) The fact that the deed was not admitted to record until 1877, after the purported grantors, the grantee, and S. C. Perrin, the clerk of the county court of Kenton county, Ky., before whom the deed purported to have been acknowledged, were all dead, and hence could not be interrogated respecting the facts. Among the indicia of forgery presented by facts or evidence outside the record of the deed itself, I note the positive evidence of living members of the Bouvier family that in the year 1858 neither Michael Bouvier nor Louisa C. Bouvier, the father and mother of the witnesses, and the alleged grantors in the deed, visited the state of Kentucky. This evidence, to my mind, was extremely convincing, coupled as it was with evidence-as to the trip to Tazewell, Va., in 1857, and the reasons why the father never traveled unattended, and the mother seldom at all, except in cases of necessity, and taken with the other internal evidence tó which I have alluded, and that to which I shall allude hereafter, leaves no doubt in my mind that neither Michael Bouvier nor Louisa C., his wife, acknowledged the deed of November Í0, 1858, or was, on that date or in that year, at the county seat of Kenton county, Ky. [1] At the hearing the point was attempted to be made that the evidence of the Misses Bouvier and others to show that their father and mother were not in Kentucky in 1858, and hence could not have acknowledged the deed of November 10, 1858, was inadmissible. This is not the law. It is always admissible to show that parties never appeared before the officer and acknowledged a deed. 1 Ency. of Law (1st Ed.) p. 160, and cases cited; Donahue v. Mills, 41 Ark. 421; Pickens v. Knisely, 29 W. Va. 1, 11 S. E. 932, 6 Am. St. Rep. 622. There is a wide distinction between this and the admission of an appearance before the officer, but a denial of the occurrence of certain of the material incidents recited in the certificate. In the latter class of cases it is generally held that the recitals in the certificate can only be impeached for fraud or imposition, and then only if the knowledge or notice of the fraud can be brought home to the grantee. 1 Ency. of Law, p. 160. It would, indeed, be a most unfortunate state of affairs if it were to be held that parol evidence that the alleged grantors in a deed were not present before the officer named therein, and could not have acknowledged the same before him, could not be given in respect to an instrument which was never produced for record for 19 years after its purported execution, and not so produced until after every person connected with the alleged instrument was dead. And especially in a case where the sole evidence of its existence lies in the record so made after the lapse of 19 years, and where there is nothing to show that, even at the time of its recordation, the paper so recorded was or ever had been in. the possession of the grantee named therein, nor that any claim was made under said instrument for 30 years after such recordation. [2] Among the evidences repelling the presumption of the delivery of the deed, which would ordinarily arise from the fact of recordation, I may mention: [661] (1) The fact that the deed was not recorded until 19 years after its date. In Equitable Mortgage Company v. Brown, 105 Ga. 475, 30 S. E. 687, it was held that there is no presumption of delivery where it appears that the deed was registered after the grantor’s death. See, also, Hill v. McNichol, 80 Me. 209, 13 Atl. 883; Walsh v. V. M. Ins. Co., 54 Vt. 351; Knolls v. Barnhart, 71 N. Y. 474; Ten Eyck v. Whitbeck, 156 N. Y. 352, 50 N. E. 963. (2) The absence of any claim by the grantee or those claiming under him for about 30 years after the deed was recorded, or nearly 50 vears after its date. See cases above noted, and also Marnix v. Riorcian, 75 App. Div. 135, 77 N. Y. Supp. 357 (1902). (3) The fact that for all of said 30 years no taxes were paid by the descendants of the alleged grantee. (4) The acts and conduct of the grantor subsequent to the date of the alleged deed are absolutely inconsistent with an intention on his part to execute and deliver the deed in question. His payment of faxes up to his death in 1874, and execution by him in January, 1865, of a deed for 36,450 acres of the land embraced in the deed of 1858. and his letter to John Herman, later in that year, in relation to his proposed sale of the remainder, are all utterly inconsistent with the execution and delivery of this deed. (5) The acts and conduct of the alleged grantee and his descendants are also inconsistent with the valid delivery of this deed. Herman’s actions in his lifetime were confined to those tracts of lands to which he had deed by metes and bounds. He never had these lands assessed to himself for taxes. It does not appear that he ever had possession of the deed, and the communication to him from M. Bouvier in 1865 negatives the idea that there had then been any delivery of such a deed to him, and he (Herman) died the next year. In 1894 or 1895, in the bill brought by Mary Ann Herman and Cornelia M. Herman against Jesse R. Irwin and others, the said plaintiffs only claimed ,7/iso of the alleged excess of the Morris grants above the acreage found by the Harman survey, and made the Bouvier heirs parties, and upon the last page of said bill it affirmatively appears that at that date (1895) said Mary Ann Herman and Cornelia M. Herman made no claim whatever to the land in controversy in this suit, although said deed of November 10, 1858, had then been on record for 18 years, but claimed only their alleged proportion of the alleged excess of the two Morris grants over the six tracts laid off in 1853, and of which the 8,400-acre tract in controversy was one (though not conveyed). (6) The only knowledge that is afforded as to the custody of the paper that was recorded in McDowell county in 1877 is afforded by a notation on the margin of the deed book in these words: ‘•This deed was mailed to S. S. Marsh, care H. T. Basford, P. O. Box 3476, New York, June 29/77.” [3] Efforts have been made to ascertain the further history of the paper, as well as to ascertain what, if any, relation either of these persons sustained toward either the grantors or grantee under this deed, but without effect; so that there is nothing to show that this paper, cither before or since its recordation, has ever been in any proper cus [662] tody. Under these' circumstances it seems that the bare record of the paper can- certainly have no more force than the original paper, un7 recorded, but produced-, and relied upon, could have. And as to the weight which would be given to it, in Applegate v. Lexington, etc., Mining Co., 117 U. S. 255, 6 Sup. Ct. 742, 29 L. Ed. 892, Mr. Justice Woods, delivering the opinion of the court, says: “The rule is that an ancient deed may be admitted in evidence without direct proof of- its :execution, if it appears to be of the age of at least 30 years, when it is found in some proper custody, and either possession under it is shown, or some other corroborative evidence óf .its authenticity, freeing it from- all just ground of suspicion.” For the reasons herein indicated, a decree may be drawn in favor of the plaintiff, granting the relief prayed for in the bill.