Miller v. Miller , 121 Mont. 55 ( 1948 )

I concur in the result reached by Chief Justice Adair but not with all that is said in his opinion.

I think the case calls for application of the rule enunciated in Casey v. Northern P. Ry. Co., 60 Mont. 56, 198 P. 141; Morton v. Mooney. 97 Mont. 1, 33 P.2d 262, and kindred cases.

As pointed out in the opinion of the Chief Justice, plaintiff made self-contradictory statements; his statement that defendant signed and acknowledged the deed is contrary to the physical facts, in that the deed, neither at the place where the notarial seal usually appears, nor elsewhere, shows any indication that there ever was a notarial seal on it. In fact there is no indication on the deed offered in evidence that it was ever signed. The burial of the deed for many years might be sufficient to account for the absence of the signature but it does not give a satisfactory explanation of the absence of the seal of the notary public. It seems to me that since the offered deed contains matters placed thereon by the typewriter, it would have retained the imprint of the notarial seal if one had been placed thereon or the fiber of the paper would have been so stretched and weakened by the imprint of the seal that the deed would have disintegrated at the place where the seal was affixed to a greater degree than at other places, contrary to the facts as shown by the deed exhibited to us.

Therefore, on the whole plaintiff's evidence is so unsatisfactory that findings and judgment based thereon should not stand.