Davis v. Hamblin ( 1879 )

Bowie, J.,

delivered the opinion of the Court.

The appellants, (plaintiffs below,) heirs of Mary Davis, deceased, instituted an action of ejectment, in the Circuit Court for Worcester County, against the appellees, heirs of one John Hamblin, on the 29th of May, 1878, to recover certain lands in the declaration mentioned. At the trial of the cause below, it being admitted that Mary Davis was a feme covert, and the wife of Littleton Davis, and possessed, in fee in her own right, during the coverture, of the land in controversy together with her husband, and that she died feme covert and intestate, on the 29th of July, 1851, her husband surviving her, leaving the plaintiffs her heirs at law, and that her husband, Littleton Davis died on the 24th of October, 1858. The plaintiffs rested their case. The defendants then offered in evidence the record of a deed from Littleton Davis and Mary, his wife, to John Hamblin, (who it was admitted entered into possession of the lands, which were the same of which the said Mary Davis had been seized and described in the narr.,) as soon as the deed was made, and remained in possession until his death in the year 1876, leaving the defendants his heirs at law, who have been in possession of the same ever since his death. The defendants then closed their case.

The plaintiffs then offered in evidence a paper writing, purporting to he the original deed from Littleton Davis, and Mary, his wife, to John Hamblin, the record of which had been given in evidence by the defendants; and further offered to prove by competent evidence, that the signature to the certificate of the enrolment thereof was the genuine signature of John C. Handy, then Clerk of Worcester County Court, and that the said original deed was in the possession of the said Hamblin, as a title paper, at the time of his death. The defendants objected to the admission of the paper purporting to he the original deed,, and the Court having inquired of the counsel for the plaintiffs for what purpose said paper was offered, the plaintiffs’ counsel stated : 1st. That they offered it as admissible generally. 2nd. As tending to prove upon its face, that Mary Davis did not execute said original deed, but. that her signature was forged and fraudulent; and 3rd.. As tending to prove and show upon its face, that the said original deed had been fraudulently erased, changed and altered, in the name of the month of its execution, after its alleged execution, and before its enrolment; that is to say, that the same was attempted to be executed, and was executed as far as the same ever was executed, in the month of August, 1833, and was so dated at that time, and was afterwards, whilst in possession of the said Hamblin, altered by erasing the word “August” and inserting the word “November ” in its place.

And the plaintiffs offered to follow up the introduction of the original deed of 1833, by parol proof from competent witnesses, tending to show that on the day of the pretended execution of said original deed, the said Mary Davis was called upon by her husband, Littleton Davis, and the certifying magistrate, Stephen Roach, (John Hamblin and others being present,) to execute the alleged original deed, and she declined to do so, and that her name was written by her husband, without her assent, and that she was so distressed as not to know or see it, and on being requested to make her mark, she declined to do so, and that the magistrate, Roach, who is now dead, said it was mere matter of form, and without her making her mark, he then certified the same in her presence and the presence of her husband, and that the certifying magistrate, James Welbourn, who is now dead, for the first time then entered the room, and without a word from him to Mary Davis, or her to him, in her presence, and the presence of her husband, attested the deed and subscribed the certificate of acknowledgment, and that no privy examination or acknowledgment of Mary Davis was ever made by, or in the presence of either of said magistrates. The counsel of the defendants then renewed their objections to the admission of said original deed in evidence, and also to the oral testimony proffered with it, because it was incompetent and inadmissible in this action, and in that way to impeach the deed, the magistrates’ certificate, and the record thereof. The Court sustained the objection, excluded the evidence, and the plaintiffs excepted.

The appellants contend that the Court below rejected the testimony offered by them, upon the theory urged by the appellees, that the justices’ certificate of the execution and acknowledgment of the deed, and the record thereof is conclusive evidence of its due execution, and that no evidence is admissible in this action to disprove the same.

The appellees’ proposition as we gather from their brief is: That titles to.land, evidenced by regular conveyances, recorded according to law, cannot be impeached in a Court of law, in an action of ejectment, by proof of fraud in the procurement of the deed, or in taking and certifying their acknowledgment by the justices before whom they purport to have been executed, but must be set aside by proceedings in equity:

That a certified copy of a deed regularly recorded, is not only prima facie, but conclusive proof of the facts therein stated, and its due execution and acknowledgment, as between grantor and grantee, and all claiming under them in a Court of law. Besides relying on these general and broad propositions for maintaining the action of the Court below, in rejecting the evidence offered by the appellants, the appellees contend the appellants did not object to the introduction of the copy of the record offered by the appellees when offered, and that having rested their case, they could only offer testimony in rebuttal, which is not the character of the evidence in question.

3rd. That the appellants could not impeach a deed offered by themselves.

The preliminary objections, that no resistance was made to the introduction of the record; that the evidence proposed to be offered by the plaintiffs was not rebutting evidence ; and, that the plaintiffs could not impeach their own testimony will be first considered.

The certified copy of the record if regular and duly authenticated, is conceded to be prima facie evidence of the. original deed, and its execution and acknowledgment. As such it was competent and proper testimony to support the issue joined on the part of the defendants. It does not appear that the defendants offered the record of the deed with any declaration of their object and purpose, or of its degree of weight or effect, but offering it generally, and the same being admissible as prima, facie evidence, there was no ground for objection on the part of the plaintiffs.

There can be no doubt of the soundness of the rule, that evidence which ought to be offered in chief will be rejected when offered as rebutting testimony. Vide Lewin vs. Simpson, 38 Md., 468.

The difficulty lies in its application. The line of distinction between testimony in chief, and that in rebuttal is often very fine.

Rebutting evidence is that which repels or counteracts the effect of evidence which has preceded it.

Evidence which shows that the evidence of the opposite party was not entitled to the force and effect which the law imputes to it prima, facie, must in its strictest sense be rebutting. In this sense the term rebuttal is used by Wharton in his work on Evidence, 2 Vol., sec. 1052, where treating of the effect of the acknowledgment of deeds, that learned author expresses himself as follows:

“It has been said that parol evidence is inadmissible to contradict the certificate of the acknowledgment of a deed. But this conclusion is founded on a petitio principii. We cannot logically declare that a deed is acknowledged when the acknowledgment is the point in dispute. The true view is, that the certificate of acknowledgment is prima facie, proof of the facts it contains, if within the officer’s range, but is open to rebuttal between the parties by proof of gross concurrent mistake or fraud. In favor of purchasers for valuable consideration without notice, it is conclusive as to all matters which it is the duty of the acknowledging officer to certify, if he has jurisdiction. As to all other persons, it is open to dispute.” In the case of the State vs. Crawford, 6 H. & J., 234, this Court decided that “where an instrument of writing is required to be recorded, the enrolment of it is evidence of all circumstances necessary to give it validity, but this evidence is not conclusive, it is only prima facie, and like all prima facie evidence may be rebutted. To give it a conclusive effect might be ruinous to-the community; an enrolment however obtained would exclude all inquiry ; it would be a shield and protection, to fraud, forgery and deceit.”

This decision is recognized and adopted in several subsequent cases, and it may be regarded as the settled law of' the State. Vide 6 H. & J., 276; Barry vs. Hoffman, 6 Md., 87, 88; Warner vs. Hardy, 6 Md., 537.

The third preliminary objection that the plaintiffs could not impeach their own evidence, when applied to the appellants’ offer of the original deed for the purposes indicated is equally untenable.

The original deed proposed to be given in evidence by the appellants, was the ground of the defendants’ title. To show it was unsound, forged and fraudulent, the appellants tendered it to the examination and inspection of the the jury or Court acting as a jury, that they determine-from its face whether it was a genuine instrument or not, and also in connection with parol evidence, to prove it was procured by fraud. An instrument submitted to a Court or jury for such purposes, cannot be called the evidence of the plaintiffs or party offering it; it was a muniment of the appellees’ title found in their possession, and therefore testimony against them, if it disclosed on its face,, any mark of mutilation or alteration in a material part.

An inspection or production of a deed, is often a necessary pre-requisite to the submission of testimony, proving-its fraudulent character. In the case of Remington vs. Linthicum, 16 Peters, 93, the plaintiffs read in evidence the deed from Offutt to James Remington and from James to-William Remington, for the purpose of showing that the defendant in ejectment, William Remington, claimed title under Offutt. And then offered further to prove that the said deeds were fraudulent and void as against the plaintiffs. This last mentioned evidence was objected to by the defendant, but admitted by the Court below. Held by the Supreme Court that the evidence was rightly admitted. The deeds were read by the plaintiffs to show that Remington claimed under Offutt, but not to show that he was a bona fide, purchaser, and when he afterwards offered evidence to prove that these deeds were fraudulent, there was nothing in this offer inconsistent or incompatible with what he had before endeavored to establish by the production of the deeds.

We recur now to the main question, the admissibility of parol evidence in a Court of law, to prove that the execution, acknowledgment or registration of a deed was procured by fraud, or that it was fraudulently altered or forged.

The authorities already cited to show that certificates of acknowledgment and copies of the record, are only prima Jade proof, establish the doctrine. Such proof is admissible and essential for the protection of the weak, ignorant and infirm. The deed in question in this case, is that of a a married woman, who owned the land in controversy in her own right, and whose right and interests in the same could not be aliened and transferred to a third person, according to the provisions of the Acts of Assembly then in force without a private examination before the Judge or justices out of the presence and hearing of her husband, whether she doth willingly execute the same, etc., nor without the signing and sealing of said deed before such Judge or justices out of the presence and hearing of her husband, which Judge or justices shall endorse upon or annex to such deed, a certificate under his or their hands of such private examination, execution and acknowledgment. Vide Act of 1830, ch. 164, sec. 3.

(Decided 18th June, 1879.)

The certificate of acknowledgment of the deed purporting to be a deed from Davis and wife to John Hamblin, contains no mention of a private examination, and would therefore be insufficient at law to show a transfer of her title to Hamblin; but connected with the evidence proposed to be given, which for the purposes of this inquiry, must be presumed to be true, the existence of the instrument itself as the act of Mary Davis would be disproved,, and a gross fraud and forgery exposed.

The counsel of the parties have shown great learning,, industry and research in collecting and citing numerous authorities to sustain their respective theories, which would require more space and time to refer to than we have at our command. The main question being decided by the decisions of this State, we have thought it unnecessary to' lengthen this opinion by reference to other authorities.

It results from what we have said, that the Court below in our opinion, were in error in rejecting the evidence offered by the appellants as embodied in the bill of exceptions, and, therefore, the judgment will be reversed with costs to the appellants in both Courts, and new trial awarded.

Judgment reversed, &c.