Plaintiffs, three sisters and heirs-at-law of Mrs. Pearl Hamb, who died intestate on June 20, 1964, brought this action in the Circuit Court of Kanawha County to cancel and declare null and void a certain deed from Pearl Hamb to the defendant, Jane Wells Bottomlee, a niece and heir-at-law of Mrs. Hamb. The deed in question, dated March 2, 1964, and purporting to convey all of Mrs. Hamb's real property in the town of Marmet, West Virginia, to the defendant, is alleged to be invalid on the grounds
The evidence adduced in behalf of plaintiffs is substantially as follows: Mr. Charles Appel, Jr., a questioned document expert of notable experience in his field, stated that in his opinion, after thorough examination of the signature on the deed in question in comparison with known signatures of Mrs. Hamb, the signature on the deed was not executed by Mrs. Hamb "* * but was composed by somebody else very carefully so as to resemble the model signature which was being copied." Mr. Conker, an employee of the Kanawha Valley Bank who was sent to appraise the property in connection with an application for a loan made by the defendant on March 11, 1964, testified that he met with the defendant on the property and was conversing with her when they were accosted by an elderly lady who inquired the reason for his presence; he informed her of the reason, whereupon, in defendant's presence, the lady stated that she owned the property and did not desire a loan, and that defendant made "* * * no argument about it." The witness described the lady as "a real old woman" with "I think it was gray" hair. Defendant was then called by plaintiffs for a limited examination upon this question and testified that Mrs. Hamb had "coal black" hair, she did not converse with Conker in the presence of Mrs. Hamb, and she did not pursue the application for a loan from the Kanawha Valley Bank because "it was going to take too long. * * *" A loan was then obtained from a private source in April, defendant receiving $8,500.00 by executing a note in the sum of $9,500.00. This note was paid off in August 1964. Plaintiffs then introduced four witnesses upon the question of Mrs. Hamb's mental capacity, three of whom doubted her capacity to execute a deed but all based their opinions upon an increasing forgetfulness or lack of memory at times while at other times Mrs. Hamb appeared her normal self. One of the witnesses also testified that Mrs. Hamb's only income, other than a small government check, was received from the property purportedly conveyed by the deed to the defendant. Introduced as exhibits by the plaintiffs were: the deed of March 2, 1964, from Pearl Hamb to the defendant, showing a notarial certificate dated March 2, 1964, and a notation admitting it to record upon presentation by the attorney for defendant on April 8, 1964; an unexecuted deed dated February 19, 1964, between Pearl Hamm and defendant; the first page of a deed identical to the executed deed with the exception that the words "with appurtenances thereunto belonging" are omitted; an unexecuted will of Pearl Hamb, dated the ___ day of March, 1964, devising to "Jane Wells Bottomlee and Walter Leon Bottomlee, all of my property, both real personal or mixed, wheresoever situate, to be hers (sic) absolutely and in fee." with one dollar each to her other relatives; a rental agreement executed February 29, 1964, extending a previous agreement, applicable to a garage or building on the property which would expire on November 1, 1964, to December 31, 1966; receipts for rent dated February 8, March 15, April 8 and May 10, all in the year 1964; and several known signatures of Mrs. Hamb. At the conclusion of plaintiffs' evidence the defendant moved for a directed verdict which was overruled upon the question of execution, delivery and mental incapacity but sustained as to the question of undue influence.
Defendant introduced the testimony of the notary public, her attorney, a witness to the signing of the deed, and two witnesses as to the mental capacity of Mrs. Hamb.
Of the three issues presented upon the pleadings of this case, that is, (1) the mental incapacity of grantor; (2) undue influence upon the grantor; and, (3) whether
In the recent case of State Farm Mutual Auto. Ins. Co. v. American Cas. Co., decided March 1, 1966, W.Va., 146 S.E.2d 842, this Court held, as it always has, that "It is fundamental that this Court will give due weight to findings of fact made by a trial court in a case tried by it without a jury. This general principle, substantially as it was recognized before the promulgation of the Rules of Civil Procedure, has been embodied in R.C.P. 52(a) in the following language: `Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'" This rule as was stated in that case with the citation of many previous cases to the same effect is that "findings of fact made by trial courts sitting in lieu of juries is applied with greater force in cases in which testimony of witnesses has been heard ore tenus by the trial court." This case was heard ore tenus by an able and distinguished trial judge. We are of the view, however, that in a great measure the decision of this case calls for a proper application of legal principles to facts which are without substantial dispute. It is true that there is some conflict in the testimony but we believe it not so material or pertinent to the legal principles involved to permit more than one finding from that evidence. The testimony of the handwriting expert, Appel, is to the effect that the name of the deceased, Pearl Hamb, signed to this deed was not only not her signature but that it obviously was written by someone who was deliberately attempting to make the signature look like hers. This is the second syllabus point of Barbee v. Amory, 106 W.Va. 507, 146 S.E. 59: "A forged deed is a nullity, and neither the grantee nor those claiming under him can acquire any title under such deed." In Garrett v. Goff, 61 W.Va. 221, 56 S.E. 351, this is the third syllabus point: "There can be no acceptance of a deed by a vendee without a delivery thereof by or on behalf of the vendor." Briefly, the facts in that case were these: plaintiff, after execution and acknowledgment by the grantors, placed the deed in question in the hands of one Starkey to be delivered to the defendant when the defendant should execute and deliver to Starkey for plaintiff another deed conveying a tract of land consisting of one hundred twenty-five acres; this the defendant did not do, but instead plaintiff secured the deed from Starkey "under the pretense of placing upon it proper internal revenue stamps and [the deed] was not returned to Starkey, but in some way came into the possession of defendant, who caused the same to be recorded, as he claims and so testified, for safekeeping, and not at all as an acceptance of the deed." Upon those facts the Court, of course, held that there had been no delivery. In French v. Dillon, 120 W.Va. 268, 197 S.E. 725, the only syllabus point reads as follows: "To constitute legal delivery of a deed, the grantor must intend that it presently vest in the grantee the estate purportedly conveyed. The handing of the deed to the grantee without that intent is not delivery. The purpose of the manual delivery may be shown by circumstances. Among the circumstances admissible are the subsequent control of the property described in the deed, and the subsequent conduct of the parties." The facts show one French and his wife deeded certain tracts of land to
Somewhat to the converse of the French case were the facts in McConnell v. Rowland, 48 W.Va. 276, 37 S.E. 586. In that case the plaintiffs conveyed a house and lot in consideration of one hundred forty dollars paid and the further consideration of a deed for five vacant lots. It developed that title to these lots was not clear and plaintiff refused to deliver the deed. The deed was placed in the custody of one Kemery and thereafter the grantee Cole "surreptitiously obtained possession of plaintiffs' deed, placed the same on record, and then sold and transferred the property to the defendant George W. Rowland, an innocent purchaser for value. Cole had possession of the property, and turned it over to Rowland." The issue here was between two innocent persons and the Court, finding the plaintiff guilty of laches, chose to confirm the conveyance, though stating "The deed having been virtually stolen and placed on record, equity has jurisdiction to cancel it and place the parties in statu quo." In Andre v. Hoffman, 81 W.Va. 620, 95 S. E. 84, one of the issues was whether certain deeds were forged "and that the same should be cancelled as clouds upon the plaintiff's title." The rule laid down in Hill v. Horse Creek Coal Land Co., 70 W.Va. 221, 73 S.E. 718, was distinguished, the Court stating that in the latter case the evidence "offered against the deed was the testimony of the grantor therein that the signature thereto was not genuine." The Court noted in the opinion that the acknowledgment of the officer before whom the grantor had executed the deed was controlling, then stated: "No such conditions exist here. In this case the testimony of the alleged grantor is corroborated by other admitted forgeries committed by the grantee in connection with the same transaction, by many other fraudulent and deceitful practices of his in connection therewith, by the testimony of the officer before whom the acknowledgment was taken that Mrs. Andre was not the woman who acknowledged it, and is further corroborated by the fact that Hoffman, though a party to the suit and available, does not testify in support of the deeds."
While the degree of proof required in the ordinary civil case is by a preponderance of the evidence the burden upon the plaintiffs in the instant case is much more exacting. This is the first syllabus point of Roberts v. Huntington Development & Gas Co., 89 W.Va. 384, 109 S.E. 348: "In order to impeach the certificate of acknowledgment of a duly authorized officer, the proof thereof must be clear, cogent, satisfactory and controlling beyond reasonable doubt." The issue in that case was whether one Dortha D. S. Billups had signed and acknowledged a disclaimer of title. There was no question that her husband had signed the instrument and he so stated as a witness. There was evidence that his wife had refused to sign it and stated that "she never would". She was illiterate and usually signed instruments by mark but this instrument was signed in this
In Hunt v. Hunt, 91 W.Va. 685, 114 S.E. 283, the plaintiff brought her suit in the Circuit Court of Jackson County for the purpose of having cancelled a deed alleged to have been executed by the plaintiff, in which her husband joined, conveying a forty-five acre tract of land in that county. The husband was dead at the time the case was heard. The plaintiff alleged that her signature had been obtained by fraud and that the deed had never been delivered to the grantee. As to the allegation of fraud this Court held in syllabus Pt. 1 that: "He who alleges fraud must clearly and distinctly prove it, either by circumstantial or direct
The case of Waldron v. Waller, 65 W.Va. 605, 64 S.E. 964, 32 L.R.A.,N.S., 284, is cited and quoted from in both the opinion of the trial court and the briefs of appellees in this Court. That case is cited for the principle that a deed, materially altered after it has been executed, acknowledged and delivered by the grantor, requires redelivery to be effective, and reacknowledgment when necessary, and it is contended that the verity imported to the certification of the notary does not therefore obtain in the instant case because of the alteration of the deed in question by the addition of the words "with appurtenances thereunto belonging". Such contention is not well taken. This is the third syllabus point of the Waldron case: "If, after it has been executed and delivered, a deed for land, with the consent of the grantors, be altered so as to make it describe a larger boundary, in order to make it effective to convey the additional land it should be redelivered, and, if it has been acknowledged before the alteration, it should be again acknowledged." Judge Miller in the opinion said: "The bill seems to have been framed and to proceed upon the theory that where a deed of conveyance has been altered by or at the instance of the grantee, in a material matter such alteration not only destroys the deed, but also entitles the grantor to be reinvested with the title to the land as conveyed. This, however, is not the law. As stated by Mr. Devlin (1 Devlin on Deeds, § 460): `The true rule seems to be that if the deed is altered after execution by a party claiming some benefit under it, or by his privity, its operation as an executed contract is not affected.' And that: `Titles vested by it are not disturbed, but the party making the alteration is deprived of all future benefits that he might have derived from it, and cannot enforce any executory obligation contained in it.' When the title to land has once vested, any alteration in the deed, made by the grantee, though material, will not deprive him of his title or reinvest it in the grantor. If anything is destroyed by the alteration, it is the deed, and not the title. A deed may be altered, mutilated, changed, or wholly destroyed so as to be no longer competent evidence, or capable of being introduced in evidence, yet the title vested by the grant is not thereby destroyed." It will be observed, as heretofore noted, that there was no material change in the deed in the instant case between the
While the trial judge, at the time he made his decision and filed his opinion, which has been made a part of the record in the case, did not have available the transcript of the evidence of all of the witnesses, the record is complete before us and in this regard we are at somewhat of an advantage. It is our view that the decision of the trial judge was predicated upon an erroneous finding of fact and that we are in accord as to the applicable law of this jurisdiction. In his opinion the learned trial judge said: "Delivery of the purportedly executed deed is, in this case, a crucial question. Certainly there was not a delivery of the deed to the purported grantee between the time the notary testified that the deed was first executed and the time it was returned to the lawyer's office for the final amendment. The notary testified that it was at the suggestion of Mrs. Hamb that the deed was returned to the office for amendment. The evidence, therefore, clearly preponderates against any intent on the part of Mrs. Hamb to effect a delivery to the grantee at that time." (Italics supplied.) This is a further statement from the opinion of Judge Taylor: "Counsel for the defendant argue that since a new certificate of acknowledgment would be precisely the same as the original, the act would be useless and should not be required. While it is true that a second certificate would have been a duplicate of the original, I cannot agree that such would have been a useless act; a second certificate would have, in this case, constituted record evidence of the series of events—specifically, the reacknowledgment of the deed—which led to the purported final execution and delivery of the deed. As the record presently stands, we must resort to the testimony of the notary to determine what transpired. I am, therefore, of opinion that the original certificate of the notary could not be adopted by her as a new certificate to the alleged reacknowledgment of the purported deed for the purpose of importing verity thereto. The execution and delivery, therefore, become questions of fact, stripped of the presumption of verity arising upon a regular certificate of acknowledgment. See Gaskins v. Allen (N.C.1905), [137 N.C. 414], 49 S.E. 919."
It is clear from this record that the notary made three trips to the home of the grantor, Mrs. Hamb. It was on the first visit that Mrs. Hamb examined the deed, noted that her name was spelled "Hamm" rather than "Hamb" and declined to execute or acknowledge the deed until that mistake was rectified. The evidence is clear by the notary that at that time there was no signature affixed to the deed and that she did not take acknowledgment of any signature. On the second visit the notary, without creditable contradiction, stated that the deed was in the possession of the grantor, her name was affixed thereto and that after reading the deed to her, the grantor stated that the name affixed thereto was her signature and the notary formally appended her certificate. Mrs. Hamb never thereafter requested any change in the deed. However, at the office of the attorney for the grantee it was determined by him or some other person that the phrase "with all appurtenances thereunto belonging" should be contained in the granting clause and the first page was rewritten with that phrase included. Then came the third visit by the notary to the grantor. Again the deed was read with the new phrase added and the deed was left
The uncontradicted testimony of the attorney for the grantee was to the effect that soon after March 2nd the grantee brought the executed and acknowledged deed of the grantor to him for recordation. The lips of the grantee, of course, were sealed by virtue of Code, 57-3-1, as amended, the deceased persons' statute, but it must be assumed that the grantee received the deed from the grantor in whose possession the notary had left it, and brought it to the office of her attorney. The presumptions in the cases heretofore cited are conclusive as to that point. Furthermore, the testimony of the attorney for the grantee is uncontradicted to the effect that after the delivery of the deed to him by the grantee he caused it to be recorded in the office of the Clerk of the County Court of Kanawha County. Bouvier defines "delivery" as "the transfer of a deed from the grantor to the grantee, or some person acting in his behalf, in such a manner as to deprive the grantor of the right to recall it at his option." Bouv.Law Dict., Rawle's Third Revision, Vol. 1, p. 827. No particular form of delivery is required. A deed may be manually given by the grantor to the grantee, yet this is not necessary. The real test of delivery is, did the grantor, by his acts or words, or both, intend to divest himself of title? If so, the deed is delivered. The delivery of a deed by the grantor to a deputy clerk for recordation, or, as heretofore stated, by the grantee's attorney at the former's request, constitutes a delivery to the grantee. An examination of the authorities and the decisions of other jurisdictions indicates that this is the universal rule.
For the reasons herein stated the judgment of the Circuit Court of Kanawha County is reversed and the case is remanded to that court for such further proceedings as may be not in conflict with the mandate of this Court and the views expressed in this opinion.
Reversed and remanded.