Ford v. Osborne. She had not called the notary. It is no answer to this, to say that she was not bound to call one who was, or might prove to be, an adverse witness; the failure to call him could not add to the strength of her case. It rested upon her own evidence and that of her husband-both directly interested in setting aside the deed. When the law of evidence was so changed as to permit parties to testify in their own behalf, the infirmities of interested testimony were not overlooked by the legislature; it was simply removed as a ground of incompetency, and left to affect the credibility of the witness. And the trier of fact who disregards what human experience has shown to be a common infirmity of all interested testimony, is very likely to be deceived. But the testimony of the husband was affected, not only by his interest, but also by his admitted turpitude. His evidence shows one of two things to be true: Either he was guilty of perjury in the testimony he gave at the trial, or he had been guilty of a felony in obtaining a large amount of money upon what he knew to be a fraudulent deed. It would be utterly unsafe to base any judgment upon the unsupported testimony of such a witness. And the suggestion readily arises at this point, that if he had such control over his wife as to enable him to influence her to do an act against her interest, it would not be any the less effectual when exerted in favor of her interest. Nor can it be said that the case of the plaintiff was strengthened by the evidence offered by the defendants; on the contrary, candor must, as we think, compel the admission that it was very much weakened. It was shown that the ink of the signature of the notary and that of Mrs. Osborne was of the same kind, namely, Arnold's. It is true, as stated, that this ink is in very common use, and that she may have had such ink at her residence, where she says she signed the deed. But it was not shown that she had such ink. If she had, it was for her to show it, and not for the defendants to show that she had not. This may have been an oversight. Nevertheless, the identity of the ink in the signatures was a circumstance of some weight, Ford t. Osborne. as it tended to show that she signed the deed at the place where the notary certified the acknowledgment of it. Again, she testifies that she signed the deed at her residence, no one being present but herself and husband. And he says that after she signed it, he took it to the office of the notary, signed it himself, had it witnessed and acknowledged before the notary, and at once delivered it to Comfort Adams. Now it is evident, that if this be true, then her name should appear to have been written before, and not after his, upon the deed. Yet an inspection of the signatures, shows conclusively that she signed it after he did; for not only does the microscope show, but such is the testimony of the experts, that the tail of the letter "y" in her first name "Mary," passes over and not under the script in his signature. It is difficult to reconcile this discrepancy in any other than one of two ways: We must assume that she attended her husband and signed the deed after he signed it at the notary's office, or else, after it had been acknowledged by him he took it to her residence, where she signed it before he delivered it. But either of these assumptions is fatal to her claim; for if she signed the deed after the certificate of acknowledgment had been added, then according to all the authorities, she would be estopped from showing the fact as against an innocent party; and the same is true if she signed it before and in the presence of the notary. Baldwin v. Snowden, supra. The deed was made in 1874, and at once placed on record. She knew when she signed it, that the object of the instrument was to enable him to get a loan of money. The money -a large amount, was loaned to him. It is possible, but not probable, that she did not know all this; that is, that the deed had been acknowledged, delivered, placed on record, and the money loaned. If she did, it is not consistent with the claim she now makes, that she never acknowledged the deed. nor authorized its delivery; a claim, not made until some five years after the transaction had occurred, and after an interest had been conveyed in the property to an innocent third person. These are some of the circumstances that, in the opinion of Ford v. Osborne. the majority of this court, tend to infirm the evidence on which the plaintiff relies to impeach the certificate of acknowledgment to the deed she admits having signed. They are of such a character as to persuade us that the court below must have erred as to the degree of proof required to impeach a duly attested certificate of acknowledgment to a deed or other instrument. The fact that the notary was not able to recall all the circumstances connected with the transaction, after such a lapse of time, does not, in our opinion, impair the validity of his certificate; particularly as he remembers the fact of having taken the acknowledgment, and testifies that he, in no instance took the acknowledgment of an instrument in the absence of the party acknowledging it. It would probably have been more remarkable, if he had been able to recall all the details of the transaction, after such a period of time. In Tooker v. Sloan, 30 N. J. Eq. 394, it was held that the certificate of acknowledgment is not invalidated nor affected by the want of recollection of the officer, as to the transaction; and such is the general view of the law. Martindale's Law of Conveyancing, 224, and cases there cited, n. 4. It is to be regretted that there is any difference of opinion. in the court as to the reversal of the judgment on the ground stated. But it is a matter of too much importance, not only to the parties in this case but to every freeholder in the state, to be controlled by any mere delicacy of opinion. Judgment reversed and cause remanded to the circuit court for a new trial. OWEN, C. J., concurs in the propositions of the syllabus, but dissents from the judgment of reversal for the reasons stated in the following dissenting opinion: Was Mrs. Osborne present before the notary who certified to her pretended acknowledgment? This was the one commanding issue which the court below was called upon to try. If the court clearly believed she was not, this ended the case, and in her favor. No witness swore she was. The notary, as stated by the majority, did not swear it. It is true he was Ford v. Osborne. allowed to testify that he never certified to the acknowledgment of deeds without the personal presence before him of the signers. But his credit was affected by impeaching testimony upon this very question, which, if believed by the court, left it at liberty wholly to discredit his testimony. As soon as the plaintiff was informed that the notary had certified to her presence and acknowledgment before him, and before any suggestion to the notary of litigation, she waited upon him with her counsel. Both the plaintiff and her counsel testified, against his denial, that the notary told them that if he knew the parties and believed it was all right, he might have, or had certified acknowledgments without the personal presence of the parties. It appeared that Comfort Adams, the grantee, was present at the time the notary certified to the pretended acknowledgment, and at the time when, if at all, the plaintiff must have been present; but, while he was gravely interested in observing the transaction, he does not remember and does not testify that he saw her present on any such occasion. The fact is, and this fact appears strikingly conspicuous in the record before us, that the testimony of Mrs. Osborne and her husband that she was not present before the notary at all, but signed the deed at the house in the presence only of her husband, and with an utterly erroneous opinion of its contents, is absolutely uncontradicted by any witness upon the trial! Much importance is sought to be attached to the question whether Mrs. Osborne or her husband signed the deed first. This fact is, in itself, immaterial. It is material only as it reflects upon the credit of the husband who testified that his wife signed the deed first. The wife does not undertake to say which signed it first-convincing proof that she was swearing upon her own memory and conscience, and not upon any suggestion of her husband. It is true that witnesses were introduced by the defendant below, who testified that, in their opinions, the wife signed last. Among these was an expert (who stated that he had, in his day, made ten thousand ink examinations) who, after a patient examination of nine days, with the aid of a microscope of fabulous power, was able to say that, in his opinion, the wife's name was written last. On the contrary, Ford v. Osborne. the plaintiff offered witnesses, including two experts, apparently as candid, who testified also with the aid of powerful microscopes, that, in their opinions, the wife's name was written first. The trial court possessed peculiar advantages over this court. It saw and heard the witnesses. It had the benefit of many tests of credit and means of weighing testimony which are not open to this court. While it is true that the confessed turpitude of Osborne, the husband of a victimized wife, is a fact which called upon the court to scrutinize his testimony with great caution, it is equally true that his credit, and the extent to which he was to be believed or disbelieved, was a question addressed peculiarly to the trial court. How can we say that that court did not, by this rule, weigh his testimony? We simply cannot say it. Mrs. Osborne and her husband both swore, without contradiction from any witness, that she was not before the notary. If her appearance on the witness stand was correspondingly as favorable to her credit as her testimony appears upon the record before us, it is not easy to see how the trial court could disbelieve her, or how this court can say that it erred in believing her. If that court clearly believed her, it had but one course open to it, and that was to render the judgment which we are asked to reverse. When the court was clearly convinced that she was not before the notary, all presumptions in favor of his certificate were overcome. This court must say, before reversing the judgment, either that the trial court rendered its judgment without believing that the plaintiff was not before the notary, or that it erred in so believing. It would seem, from the opinion of the majority, that they are persuaded that the trial court did not believe-was not clearly convinced of this fact; that it acted upon a mere preponderance of the evidence. Clearly this is not enough. Upon this proposition there is no discord among the members of this court. We are also together upon the proposition that, while we are not required to, and will not, weigh the evidence, with a view to determining whether it supports a judgment under review, we may and will, in a proper case, look to the whole record, and if it appears clear and manifest from it that the trial court |