Smith v. Markland , 223 Pa. 605 ( 1909 )

Opinion by

Mr. Justice Brown,

The inevitable finding in this case was that the deed from Fanny M. Smith, executrix and widow, to Mary Markland was a forgery. How it was perpetrated by Skinner and how, in his ingeniously fraudulent scheme to deceive a number of persons, he succeeded in imposing upon the appellant, the West End Trust Company, the worthless mortgage of the grantee named in the forged deed clearly appear in the finding of facts, each one of which was based upon competent evidence. As a result of these findings the court below correctly concluded that the appellees were entitled to the relief granted. The reasons for this conclusion are set out at length in an exhaustive and well-considered opinion by the learned chancellor who heard the case, and to it nothing can be here profitably added, unless it be as to the contention that the certificate of the notary public, being a judicial act, is conclusive of Fanny M. Smith’s acknowledgment of the deed in this proceeding, in which the appellant is to be regarded as a bona fide purchaser, without notice of any fraud practiced upon the alleged grantor in the deed to the mortgagor.

Mrs. Smith never appeared before the notary public, and the case is not one of the conclusiveness of the truth of the certificate of a notary public of what had been acknowledged before him by a grantor in a deed, who had actually appeared before him for the purpose of acknowledging the execution of it. This deed was a forgery and the certificate of acknowledgment, fraudulently procured by the forger’s inducing someone to appear before the notary public to personate Mrs. Smith, is as false as the deed itself. The certificate, deceitfully procured from the notary, was but the culmination of Skinner’s forgery, making it possible for him to have the forged deed recorded. No one of the cases cited by the counsel for appellant approaches the limit to which it was attempted to lead the court below. The distinction, apparently overlooked between those cases and this one, is that here there was no appearance by the alleged grantor before the notary public, and no acknowledgment at all by her. A decree of a court ‘resulting from the fraud practiced upon Mrs. Smith would be a dead letter upon the exposure of it. “In the eye of the law, fraud spoils everything it touches. The broad seal of the commonwealth is crumbled into dust, as against the interest designed to be defrauded. Every transaction of life between individuals, in which it mingles, is corrupted by its contagion. Why, then, should it find shelter in the decrees of courts? There is the last place on earth where it ought to find refuge. But it is not protected by record, judgment or decree; whenever and wherever it is detected, its disguises fall from around it, and the lurking spirit of mischief, as if touched by the spear of Ithuriel, stands exposed to the rebuke and condemnation of the lawMitchell v. Kintzer, 5 Pa. 216. The certificate of the notary in this case, procured by fraud, is nothing but cumulative evidence of the attempt of Skinner to steal Mrs. Smith’s property, and the doctrine of the rights of a bona fide purchaser has no place in the controversy. There are no such rights when the real owner of property stolen, or attempted to be stolen, from him, has done nothing to lead the purchaser of it to buy it under the belief that it was not stolen. Reliance on a forged deed, recorded on an absolutely false certificate of acknowledgment, may bring loss upon him who so relies, but neither such deed nor such certificate appended to it, can ever affect the owner of the property. This is the rule that the learned court below should have unhesitatingly announced.

In Michener and Wife v. Cavender, 38 Pa. 334, the action was a sci. fa. sur mortgage given by Eveline E. Michener and her husband on her separate estate to Cavender, the plaintiff below. The mortgage had appended to it the certificate of an alderman that Eveline E. Michener had appeared before him and acknowledged the execution of the mortgage, as required by the Act of Feb. 24, 1770. On the trial, it was clearly established that she had not appeared at all before the aider-man, but the court below held that the certificate of that officer was conclusive, in the absence of evidence that the mortgagee had knowledge that it was false. In reversing the judgment against the mortgagors and in holding that there could be no recovery upon the mortgage, this court said: “To call the mortgagee a bona fide purchaser, and to put her to proof that he knew she had been cheated, would be like making her right to reclaim stolen goods dependent on the receiver's knowledge of the felony. Suppose the mortgage was a forgery out and out, and Cavender chose to invest his money in a purchase of it, must it be enforced because he did not know he was buying a forged instrument? An instrument known to be forged would not be purchased, and would, therefore, be worthless to the forger. Counterfeit notes would never be issued if a herald went before to proclaim their spuriousness. But because they are taken without notice, do they become genuine? Is every bank and individual to redeem whatever obligations bona fide holders may obtain against them, without regard to the question whether the obligation was ever issued or not? To qarry the doctrine of notice to such extent, would subvert all law and justice.” In a later case — Reineman v. Moon, 12 Pitts. L. J. (N. S.) 167 — the defense in a sci. fa. upon a mortgage was that it was a forgery. The court below refused plaintiff’s point that, “ Plaintiff appearing to be a bona fide holder for value, without notice of any fraud, the magistrate’s certificate of acknowledgment is conclusive, and the verdict should be for the plaintiff.” The refusal of the point was held to be correct, and we said: “No man can be deprived of his property by a forged deed or mortgage, no matter what may be the bona fides of the party who claims under it.” In the very nature of things there can be no other rule.

No one of the twenty-four assignments can be sustained as pointing out any error calling for reversal, and, on the opinion of the court below, as we have briefly supplemented it, the decree is affirmed at appellant’s cost.

Decree affirmed.