I find myself unable to agree with the majority opinion and therefore respectfully dissent.
In the opinion it is conceded that Mary T. McNeff never signed the note or mortgage. So we start out with the proposition that the signatures attached are forgeries.
The appellant relies solely upon the presumption carried by the notarial certificate. Mary T. McNeff, under oath, denied the signature to both the note and mortgage and that she acknowledged same. Thus we find that we have a case where the signatures are conceded to be forgeries, and the uncontradicted, undenied testimony of Mary T. McNeff that she did not appear before the notary and acknowledge this instrument and did not authorize any one to acknowledge it for her.
Let us look now at the cases relied upon in the majority opinion. In Gribben v. Clement, 141 Iowa 144, 119 N.W. 596, 133 Am. St. Rep. 157, the alleged maker did not deny that he acknowledged the instrument, and only denied signing it. In the case at bar there is the admitted fact that Mary T. McNeff did not sign the instrument, and her denial, under oath, that she did not acknowledge the signature. In the case of Currier v. Clark, 145 Iowa, 613, 124 N.W. 622, the evidence shows that the agent who signed the instrument for the defendant was authorized to do so, and, in addition to that, the notary public who took the acknowledgment testified in support of his certificate, and the attack thereon was but a mere unsupported denial. In the case of Vanderveer v. Warner, 191 Iowa 1106, 1108, *Page 1237 183 N.W. 472, there is a dispute in regard to the signature. There is the testimony of the notary who took the acknowledgment that she acknowledged it before him. In the case of Borland v. Walrath, 33 Iowa 130, there is a dispute in regard to the signature, and the sworn testimony of the notary public that it was duly acknowledged before him. In that case the court said, at page 133:
"Public policy demands that instruments in writing pertaining to the titles of real estate, which are authenticated in the manner pointed out by the law, should not be lightly set aside. But they cannot be sustained against the positive and explicit evidence of credible witnesses."
In the case at bar we have the positive and explicit evidence of Mary T. McNeff that she did not acknowledge the instrument, and there is nothing in this entire record, as I read it, that would lead any one to believe that this woman of seventy-one years was not telling the truth.
In the case of Morris v. Sargent, 18 Iowa 90, the widow denied her signature. The notary swore under oath that she did acknowledge it. This court said that while the burden of proof is upon the person denying the notary's certificate, which must be accepted prima facie, nevertheless, the party cannot be concluded by an instrument she never signed or by a certificate that would estop her from showing that she never appeared before the officer certifying the acknowledgment. Mrs. Morris testified that she did not sign the instrument and did not appear before the notary public, and the court said that she must either be disbelieved entirely and appear to be swearing falsely or that he would be forced to the conclusion that she did not sign the deed or acknowledge the instrument. There is no testimony in the case except that of Mrs. Morris. The court believed her and held in her favor. It seems to me that the case at bar is stronger than the Morris v. Sargent case, for it is conceded that Mrs. McNeff did not sign the instrument, whereas in the Morris v. Sargent case it is a disputed fact whether or not Mrs. Morris did.
Thus we see in reading the cases cited that there was additional evidence to that of the acknowledgment. There was in these cases the testimony of the notary public who took the acknowledgment that the instrument was duly acknowledged before him, whereas we are dealing here with a case in which the *Page 1238 signature is a forgery, and in which there is the uncontradicted testimony of Mrs. McNeff that she did not acknowledge the instrument. But, the majority say, "On the other hand, we have the solemn certificate of the notary attesting the document, executed in regular form of law, and, in addition to this, we have the statement of the husband."
The only statement of the husband is that which was made to the field agent of the appellant company at the time that he first went to see McNeff. I quote from his evidence, as set out in the abstract: "Mrs. McNeff said she wouldn't have anything to do with it because, she said, `I never signed that paper. I never signed that mortgage,' and she said she wouldn't sign any more papers. She began to cry and Mr. McNeff said, `Why, mother, of course you signed that' and I said, `Mrs. McNeff, you would have to sign it or the bank wouldn't loan the money.' She contended she didn't."
Thus we find from the sworn testimony of this representative of the mortgage company that Mrs. McNeff contended she did not sign the instrument. The majority place great weight upon the fact that her husband said, "Why, mother, of course you signed that. You have forgot." I am unable to see where this statement, if it is true, is any proof that Mrs. McNeff did acknowledge the instrument, for her husband was in error when he made the statement that his wife had signed the instrument, it being conceded in the opinion that she did not sign it. So what weight does this testimony of the husband have, when he said in the presence of the field man that his wife did sign the instrument? In truth and in fact she never signed the instrument.
There is another circumstance which seems to me to add weight to Mrs. McNeff's story. The acknowledgment of the mortgage is introduced. It recites that a certain person, Mary F. McNeff, acknowledged, not Mary T. McNeff. But the majority pay little attention to this discrepancy in the signature. I cannot pass over the difference in the names as lightly as they do. There can be no claim that the error in the name was merely clerical or typographical; it was not. The name appeared exactly the same in the note and mortgage, everywhere, in the body, signature, and acknowledgment; in some six or eight places it is written Mary F. McNeff. The abstract of title which was furnished to the appellant company showed that the wife of *Page 1239 George W. McNeff was Mary T. McNeff. Whoever was guilty of this fraud simply was mistaken as to what appellee's name was, and it seems to me that some weight should be given to the fact that there was a mistake in the initial used. Would not the notary, if Mrs. McNeff had appeared before him have asked, "Is your name Mary F. McNeff?" Is it not reasonable to believe that before the acknowledgment was taken the notary would have ascertained whether or not it was Mary F. McNeff or Mary T. McNeff? It seems to me that this is evidence to show that the instrument was not acknowledged and bears out the story which Mrs. McNeff told. In order to sustain the majority, one must disbelieve the story that Mrs. McNeff told, for her story is an absolute denial of the acknowledgment of the instrument. Mrs. McNeff is a lady advanced in years. She and her husband for more than twenty-one years lived upon the farm covered by the mortgage in question in this case. No one took the witness stand to swear that she is not a truthful individual; that she has not been considered worthy of belief in the community in which she has lived all of these years. From the day that the field agent of the appellant company came to see the McNeffs, she has continually denied that she signed the instrument or acknowledged it. Add to this the fact that this lady appeared in court; that the distinguished and able trial court heard her testify upon the witness stand, had an opportunity to observe her and form an opinion as to whether or not she was telling the truth, not only from the evidence which was written and spoken, but also from the indefinable something that associates itself with every person and reveals in gesture, facial expression, and tonal qualities of voice whether or not that person is telling the truth.
True, this case is triable de novo here, but in trying to answer the one question in this case — whether or not Mrs. McNeff told the truth — I cannot overlook the fact that the lower court believed her.
The majority opinion lays much stress upon the fact that after the note became due her husband made a payment thereon with her money. Personally, I can see nothing peculiar about her conduct at that time. The husband first tried to get the money at the bank, but being unsuccessful he went to his wife. The evidence shows that he secured this money from her. Furnishing the money to her husband while he was in distress would not imply a ratification of the signature or indebtedness on her *Page 1240 part. Is there anything surprising about a wife loaning or giving to her husband, under the conditions which confronted McNeff, money to help him pay an obligation or the interest on one that he owed? Men finding themselves in financial difficulties often secure aid from friends or members of their family. Merely securing such aid from the wife, or from the husband, could not be held an admission of indebtedness by the spouse. It would be an extreme commentary on justice to say that either a husband or wife, finding themselves in financial difficulties, could not turn to their spouses for assistance. If it could not be obtained there, if the wife had the ability to furnish it, where could he secure it? There is no reason why the wife could not have loaned or given him the money. If it was a gift, or a loan, such fact would not result in making the wife liable on the indebtedness. And there is no evidence in the record tending to show that it was anything else; in fact, the majority opinion concedes "it for all practical purposes amounted to a gift." I find no evidence of ratification by the wife.
Under the circumstances in this case, where the husband is dead and the notary is dead, where the signature was conceded not to be hers, how could Mrs. McNeff prove that she did not acknowledge the instrument, except by her own words? According to her story, she was not there when the transaction took place and knew nothing about it until the field agent of the appellant company came to her, and, according to his testimony, she immediately denied signing the instrument and knowing anything about the transaction. There was no other evidence she could produce, but to present herself in court, be sworn, and testify as she did.
I believe the lower court was right, and I would affirm its decision.
I am authorized to state that Chief Justice KINTZINGER and Justices PARSONS and RICHARDS join in this dissent. *Page 1241