Summary
In Jones v. Minton, 244 Miss. 354, 141 So. 2d 564 (Miss. 1962), parties disputed a deed that was signed twenty years earlier by their forebears.
Summary of this case from Shorehaven Corp. v. TaitanoOpinion
No. 42332.
May 21, 1962.
1. Signatures — statutory requirements — individual authorization.
Statute providing that where signature of a person is required by law it shall be in proper handwriting of such person or, if unable to write, by his proper mark, merely requires a signature to be an individual authorization and that it be not engraved, printed or lithographed. Sec. 700, Code 1942.
2. Signatures — one may adopt writing of another as his individual signature.
A person may adopt the writing of another as his individual signature. Sec. 700, Code 1942.
3. Fraud — presumption against bad motive, dishonesty and fraud — evidence required to overcome presumption.
There is a presumption against bad motive, dishonesty and fraud, and a mere preponderance is not sufficient to establish fraud, and it must be established clearly and convincingly, especially where a long time has elapsed and some of the actors are dead.
4. Acknowledgment — presumption that certificate imports verity — evidence required to overcome presumption.
Certificate of acknowledgment to deed imports verity and presumptively states the truth, and such presumption can be overcome only by clear, strong and convincing evidence.
5. Acknowledgment — presumption of verity applies equally to acknowledgment by affidavit of subscribing witness.
Presumption that certificate of acknowledgment to deed states the truth arises whether the acknowledgment is made before an officer in the usual form or by affidavit of a subscribing witness.
6. Deeds — signatures — evidence insufficient to overcome presumption that wife had not adopted writing of another as her signature.
Evidence was insufficient to overcome presumption that wife, who did not actually affix her signature to deed and did not place her mark on the deed, had not adopted the writing of some other person as her signature.
7. Evidence — deed itself and acknowledgment thereon constituted evidence of its genuine execution.
Deed itself and acknowledgment thereon constitute evidence of its genuine execution.
Headnotes as approved by Gillespie, J.
APPEAL from the Chancery Court of Walthall County; F.D. HEWITT, Chancellor.
W.H. Watkins, Jr., Tylertown, for appellants.
I. In this case all of the testimony of the appellants, complainants below, and all natural and reasonable inferences that might be drawn therefrom under the circumstances, must be taken as true. Collins v. Ellzey Gin Feed Co., 239 Miss. 662, 125 So.2d 76; F.W. Woolworth Co. v. Freeman, 217 Miss. 140, 11 So.2d 792; Lee v. Duncan, 203 Miss. 152, 70 So.2d 615; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69; Mutual Life Ins. Co. v. Rather, 221 Miss. 527, 73 So.2d 163; Posey v. Weatherspoon, 227 Miss. 189, 85 So.2d 908; Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311; Statham v. Blaine, 234 Miss. 649, 107 So.2d 93; Stewart v. Coleman, 120 Miss. 28, 81 So. 653; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238; Williamson v. F.W. Woolworth Co., 237 Miss. 141, 112 So.2d 529.
II. The burden was upon the defendants, appellees here, to prove their affirmative defense set out in their answer. Coppe v. Coppe (Texas), 122 S.W. 68; Johnston v. Wallace, 53 Miss. 331; Lee v. Duncan, supra; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Smith v. Kinder (S.C.), 58 S.E. 610; Woodson v. Jones, 203 Miss. 152, 33 So.2d 316; 22 C.J. 859; 67 C.J., Vendor and Purchaser, Sec. 911; 12 C.J.S. Sec. 69 p. 1054; 27 R.C.L., Vendor and Purchaser, Sec. 437.
III. The law requires that a deed be signed by the grantor. It must be signed either in the proper handwriting of the grantor or by his proper mark. Ferguson v. Monroe Co., 71 Miss. 524, 14 So. 81; Laster v. Ard (Miss.), 42 So.2d 737; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Secs. 831, 832, 700, Code 1942.
Alexander Herring, Jackson, for appellees.
I. The Chancellor resolved conflicting testimony. Lee v. Duncan, 220 Miss. 231, 70 So.2d 615; 1 Wigmore, Evidence, Sec. 157.
II. Signature by ratification or adoption. Simmons v. Dantzler, 152 Miss. 428, 118 So. 829; 16 Am. Jur., Secs. 92, 95, 96.
III. The presumptions. Kerr v. Russell, 69 Ill. 666; Laster v. Ard (Miss.), 42 So.2d 737; Mallory v. Walton, 119 Miss. 396, 81 So. 113; White v. Inman, 212 Miss. 237, 54 So.2d 375; Woodson v. Jones, 203 Miss. 152, 33 So.2d 316; Sec. 867.5, Code 1942; 16 Am. Jur., Deeds, Secs. 155, 156; Griffith's Mississippi Chancery Practice, Sec. 589.
IV. The burden of proof did not shift.
V. The form of the acknowledgment is unimportant. Ferguson v. Monroe County, 71 Miss. 524, 14 So. 81; Simmons v. Dantzler, supra.
VI. Section 700, Mississippi Code of 1942. Ferguson v. Monroe County, supra; Mallory v. Walton, supra; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41; Simmons v. Dantzler, supra; Sec. 700, Code 1942.
VII. The question of laches. Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346.
VIII. Admissibility of Jack F. Austin's testimony. Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93, 47 So. 644; 5 Wigmore, Evidence, Sec. 1517.
This is a suit in chancery to set aside and cancel a deed to an undivided one-half interest in all minerals under a sixty acre tract of land.
The land was the homestead of W.A. Chain and wife, Sebell Chain, when the deed in question was purportedly executed by W.A. Chain and wife, Sebell Chain, to Ed W. Dawson on December 30, 1939, before two subscribing witnesses. The signatures were hand-written, purporting to be the handwritten signatures of W.A. Chain and Sebell Chain. One of the subscribing witnesses made the statutory affidavit and the deed was placed of record on January 23, 1940. More than twenty years later this suit was filed by complainants, who are successors in title to W.A. Chain, against defendants, who are successors in title to Ed W. Dawson. W.A. Chain and his wife are dead; Dawson is also dead. The Chains both lived more than ten years after the date of the deed and made no effort to avoid it. The complainants introduced two of the daughters of Mr. and Mrs. Chain and one or two other witnesses who testified that Mrs. Sebell Chain could not read or write. There is no proof to the contrary. Sebell Chain's signature is not shown to be by mark. The complainants alleged that the name of Sebell Chain was forged to the deed in question. It is not charged that W.A. Chain's name was forged but two of his daughters testified that the name "W.A. Chain," appearing on the original deed, which was in evidence, was not the signature of W.A. Chain.
The chancellor found that complainants had not met the burden of proof and held that the name of Mrs. Sebell Chain was not forged to said deed. Complainants appeal.
(Hn 1) Code Section 700 requires that in all cases where the signature of a person is required by law, it shall be in the proper handwriting of such person, or, in case he be unable to write, by his proper mark. That section has no application to the case at bar, for it merely requires a signature to be an individual authorization and shall not be engraved, printed, or lithographed. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41. (Hn 2) A person may adopt the writing of another as his individual signature. Simmons v. Dantzler, 152 Miss. 428, 118 So. 829; 16 Am. Jur., Deeds, Sec. 92, 95.
(Hn 3) There is a presumption against bad motive, dishonesty and fraud, and fraud is not a thing to be lightly charged and most emphatically not a thing to be lightly established. A mere preponderance is not sufficient to establish fraud; it must be established clearly and convincingly, especially where a long time has elapsed and some of the actors are dead. Griffith, Miss. Chancery Practice, Sec. 589. (Hn 4) Another presumption is involved in this case. The certificate of acknowledgment to the deed in question imports verity and presumptively states the truth. This presumption can be overcome only by clear, strong, and convincing evidence. Mallory v. Walton, 119 Miss. 396, 81 So. 113; White v. Inman, 212 Miss. 237, 54 So.2d 375. (Hn 5) This presumption arises whether the acknowledgment is made before an officer in the usual form or by the affidavit of a subscribing witness. Both are statutory methods of acknowledgment. In Simmons v. Dantzler, supra, it is indicated that there may be a difference between the presumption arising from the certificate of acknowledgment made before an officer and one proven by a witness, but we are unable to see any practical difference.
(Hn 6) The two presumptions just mentioned are independent of each other but equal in force and coextensive as to the area of operation in the case at bar. Since the deed purports to bear the actual signature of Sebell Chain, presumably it was her actual, personal signature. We assume, without necessarily deciding, that the proof in this case is sufficiently strong, clear, and convincing to overcome the presumption that Sebell Chain actually affixed said signature to the deed. Therefore, Sebell Chain did not personally sign the deed. The deed does not purport to be signed by the mark of Sebell Chain. But we are not done with the presumptions, for it is presumed that since Sebell Chain did not actually affix her signature, and did not place her mark on the deed, she adopted the writing of some other person as her signature. The question then arises: Did the complainants overcome the presumptions with clear and convincing evidence? The record answers that there was no evidence that Sebell Chain did not adopt the writing of some other person as her true signature. Therefore, the chancellor was not only justified in his finding, but probably could not have lawfully found otherwise. His finding that the complainants did not meet the burden of proof is fully justified.
It may not be entirely accurate to say that appellees' position in this case is supported by presumptions only, although the presumptions are entirely sufficient until overcome as aforesaid. (Hn 7) The deed itself and the acknowledgment thereon constitute evidence of its genuine execution. Wigmore on Evidence, 3rd Ed., Vol. 1, Sec. 157. The distinction between a presumption and an inference, and between presumptions of law and those of fact, and other related matters need not be considered; for it is perfectly clear that complainants' case must fail because they did not produce clear and convincing evidence that Sebell Chain did not execute the deed by adopting the affixed signature as her own.
Lee v. Duncan, 220 Miss. 234, 70 So.2d 615, is a case where the evidence overcame the presumption.
The chancellor's decision accords with the policy of the law that favors the repose of society. The right to rely on old documents and the public records finds strong support in the needs and convenience of the community.
Affirmed.
Lee, P.J., and Kyle, McElroy and Jones, JJ., concur.