Deed-Challenge of certificate of acknowledgment— Evidence-Practice- Review of evidence by supreme court. 1. Where it is claimed by the wife that a deed, signed by her husband and herself as a conveyance of her lands, had not been acknowledged by her as it purports to have been, the burthen is upon her to show the fact by clear and convincing proof; a mere preponderance of the evidence is not sufficient to support a finding contrary to the certificate of acknowledgment. 2. Where the affirmative of the issue in a civil action requires clear and convincing proof to sustain it, and it is claimed that the rule has been disregarded, this court may, where it is all set forth in a bill of exceptions, review the evidence for the purpose of determining if the rule has been regarded. (Decided March 15, 1887.) ERROR to the District Court of Cuyahoga County. Ford v. Osborne. Estep, Dickey & Squire, for plaintiffs in error. error. MINSHALL, J. The plaintiff below, Mrs. Osborne, brought suit against the defendants to set aside a deed of her lands, made in 1874, to Comfort Adams, on the ground, as she claims, that she never acknowledged or delivered it. She also asks that a deed made of the same lands by Comfort Adams to George H. Ford, in 1877, be set aside and removed as a cloud upon her title. She admits having signed the deed to Comfort Adams, but says she was induced to do so by the undue influence of her husband. She also charged collusion between her husband and the grantee and beneficiary of the deed, and that Ford had knowledge of this at the time of the conveyance to him; but of this there was no evidence at the trial, nor of any collusion between Comfort Adams and the husband of the plaintiff. There is no evidence to show any fraud or wrongdoing on the part of either of them. All the fraud, if All the fraud, if any, was on the part of the husband of the signed by the plaintiff, and was intended as a security for a large amount of money, that was about to be, and afterwards was, advanced, by Comfort Adams, Fitch Adams and others, for the accommodation of the husband of the plaintiff. Some two years afterward Comfort Adams transferred his interest in the property to Ford, and executed to him a deed for the land. The plaintiff relied on the evidence of herself and husband to show that she never acknowledged the deed. plaintiff. The deed had been The deed purports to have been acknowledged by the plaintiff before one C. E. Wheeler, a notary public; and the signing and acknowledgment purport to have been witnessed by the notary and one George Preston; the latter had, however, died before the suit was commenced. The notary was called by the defendants, but had no distinct recollection of the matter, beyond remembering that he took the acknowledgment of the deed, which remembrance seems to have been due principally to the fact, that he recognized his signature to Ford v. Osborne. the certificate of acknowledgment and as an attesting witness. The defendants offered to show by him that he made it a uniform rule to require the parties to be before him when an acknowledgment was taken, and that he knew of no departure from this rule, though he could not distinctly remember the circumstances of the present case. The offer was refused by the court, on the objection of the plaintiff; though this statement was subsequently made by him in the course of his examination, and without objection. This court is not now required, nor will it, weigh the evidence in a proceeding in error, though it is all brought before it by a bill of exceptions, for the purpose simply of determining whether the court below erred in its finding of fact. But it may, nevertheless, look into the record to determine whether there is any evidence tending to support the issue; and also, in a civil case, where the issue requires to be supported by clear and convincing proof, and not by a simple preponderance of the evidence, and it is claimed that the rule has been disregarded, the court will look into the evidence for the purpose of determining if the rule has been regarded; and, where the finding of the court below can only be sustained on the supposition that it regarded the law as requiring nothing more than a mere preponderance to support the issue made, may reverse the judgment based on such finding. Potter v. Potter, 27 Ohio St. 84. In the case of Baldwin v. Snowden, 11 Ohio St. 203, it was held that a regular statutory certificate of acknowledgment of a deed of conveyance, made by husband and wife, is, in the absence of fraud, conclusive evidence of the facts therein stated. In this case it appears that the officer went to the residence of the wife with her husband; but she was in no way informed of his character, nor of the purpose for which he was there, and, though she signed the deed while he was present, her acknowledgment was not, in fact, taken by him. But the grantee had no knowledge of these facts. However, in Williamson v. Carskadden, 36 Ohio St. 664, it was held that a grantor may, even as against an innocent party, show that he never in fact appeared before the officer and acknowl Ford v. Osborne. edged the execution of an instrument, though it purports to have been duly acknowledged by him. In both of these cases the question was presented on a demurrer to the answer of the defendant. Hence the facts as stated in the answer in each case, were admitted, and no question arose as to the degree of proof required to impeach a certificate of acknowledgment. But it is clear, as we think, that where a party, who has in fact signed a deed that purports to be acknowledged in due form of law, claims that the certificate is false, the security of titles and the repose of society require that he should establish the fact by clear and convincing proof; a mere preponderance is not sufficient. Martindale Law of Conveyancing, 224. The burthen on the plaintiff required her to meet and overcome the evidence afforded by the certificate of the notary, supported by the attestation of the witnesses, that she appeared before him as an officer and acknowledged the deed. It stands to reason that, in the absence of any thing to impeach the integrity of the officer and the witnesses, no slight importance should be attached to such evidence; because it is the evidence of an act done in pursuance of law, and which can be attested and proved in no other way. In other words, it is the evidence required by law of the execution and acknowledgment of a deed. To say that the taking of an acknowledgment of a deed is a ministerial, and not a judicial act, is simply to say that it may be attacked collaterally; it does not impair its value as a certificate made by one acting under authority of law, not only in the matter of taking the acknowledgment, but also in certifying the same. The person who, with the notary, witnessed the deed, being dead, could not be called; but in such case the genuine attestation of a deceased witness has, in law, the force and effect of a living one, who is called and verifies under oath the truth of his attestation. Therefore, when the plaintiff rested her case, it might well be questioned whether she would have been entitled to a decree if the defendant had introduced no evidence whatever. |