Perry v. Porter , 121 Mass. 522 ( 1877 )

Devens, J.

The exceptions of the defendant present some questions of difficulty, which need not now be discussed) as upon one ground we are all satisfied that the exceptions must be sustained, and it is probable that the questions referred to may not be presented at any subsequent trial.

It appeared that Mrs. Atkins had signed and acknowledged a certain deed, by which all her real estate was conveyed to Harriet N. Perry, the plaintiff’s wife. This deed had been written by the plaintiff, and was afterwards placed on record at the registry of deeds by him. It was important to determine, as to this transaction, whether Mrs. Atkins did or did not know what she thus signed, or whether she was misled by the plaintiff and induced to sign the deed without understanding or knowing what she was doing. Upon this matter the evidence was conflicting. It was not in dispute that she had actually signed the deed, but the contest was as to whether she had done so, knowing what she signed. Had she accompanied the act of signing by a declaration that she understood the deed to be an instrument of different import, as a will, or that it conveyed different property from that described in it, or that the grantee was some person other than the one named, such declarations could have been given in evidence, as they would have tended to show her actual intention, and thus that the act done was not properly her act. So, if Mrs. Atkins was able to testify directly that she never intended to convey the property to Mrs. Perry, and the deed purported to convey it, such evidence tended to show that she had no knowledge of what was contained in the deed.

It is argued by the plaintiff, that the mere intention of Mrs. Atkins was unimportant, as it was a matter that lay within her own mind. This is true if she signed the deed knowing its contents. No concealed intention could affect its validity. But when it was to be determined whether she had signed with this knowledge, the fact, if proved, that she never intended thus to convey her property, bore directly upon the issue. The presiding judge was therefore in error in declining to receive the evidence of Mrs. Atkins, to the effect that it had never entered her mind, and that she had never thought of conveying any of her real estate to Mrs. Perry. Upon this point the

Exceptions are sustained.