dissenting.
10. Deed: impeachment of. The adversary parties are Mrs. Morris and the Merchants’ Bank of Boston, the purchasers of the property at the sale by Sargent as trustee.
The deed of trust was made in April, 1859; the sale by the trustee to defendants in June, 1862. Mrs. Morris left the place in the fall of that year, and again resumed, by the artful device of her husband, in underleasing from the lessee of the defendants, possession in January, 1863, and the present petition, by the husband and wife, was filed in May, 1863.
She claims that the sale of the homestead parcel by the trustee conveyed no title to the bank, because her husband forged her name to the deed of trust, and because she never acknowledged it.
The defendants are admitted to be Iona fide purchasers for value, both of the notes secured by the trust-deed, and of the property at the trustee’s sale, without any know*104ledge of the fraud, which Mrs. Morris now insists' was practiced upon her. So that, to prevail in her claim, she must necessarily show that her husband is guilty of one of the most heinous of criminal offenses — forgery — and the officer who falsely certified her acknowledgment was likewise guilty alike of a flagrant violation of his official oath and of an indictable offense. And she can prevail only at the expense of those who have in good faith parted with their money upon the credit which they reposed, and were entitled to repose, in the official acts of .the officer who certified the acknowledgment.
It is pertinent to refer to a few authorities to show, not that a wife is bound by a forged instrument which she never acknowledged in fact, a proposition for which I do not, of course, contend, but to show the weight which the law attaches to the official certificate of the officer.
Thus there are cases which even hold that evidence cannot be received to invalidate an .acknowledgment of a deed, on the ground of fraud or duress. Bissett v. Bissett, 1 Har. & McH., 211. So where the acknowledgment recited that it was taken by two justices, parol evidence was adjudged not to be receivable to show that it was taken by the justices separately on different days and places, when the effect of allowing such proof would be to defeat the conveyance. Ridgely v. Howard, 3 Har. & McH., 321. The certificate of the officer is conclusive of the facts therein stated, unless in cases of fraud and .imposition. . “ There must,” • says Hemphill, Ch. J., in Hartley v. Frosh, 6 Texas, “ be some acts alleged showing fraud, as, for instance, that there was a fraudulent combination between the notary and the parties interested. The certificate in this case is in conformity with the statute, and cannot be impeached merely by showing that in fact the wife was not examined apart from her husband.”
*105Where the signature and acknowledgment of the wife have been procured by fraud or duress practiced upon the wife, this may be shown to avoid the deed, as to the fraudulent grantee, or volunteers and purchasers with notice; but not as to bona fide purchasers without notice, and for value, where the acknowledgment is regular on its face. Schrader v. Decker, 9 Barr, 14. And see also 3 Wheat., 457, 468; McNeely v. Rucker, 6 Blackf., 391; Campbell v. Taul (as to relief in chancery), 3 Yerg., 648.
To establish a case, then, involving the commission of two criminal offenses, the impeachment of the official acts of an officer of the law, and at the expense of rights and a title fairly acquired by the defendants, the plaintiff’s proof should be extremely clear. A mixed case ought not to answer. It should be freed from all suspicion and doubt. Such a case has not, in my judgment, been made; far from it.
I do not propose to give my views in extenso, but in outline merely, as the controversy chiefly turns upon the facts. I lay Morris’ testimony out of the case. He would not be heard in his own behalf to avoid the deed, for the reason that he had forged his wife’s name thereto. Though he unblushingly admits that he did so, the wife cannot have the benefit of this testimony, if entitled to any consideration, because in my opinion he is not a, competent witness in favor of the wife against the defendant’s objection.
Her case rests, then, upon her own testimony, and that of the experts called by her. She does testify that she did not sign or acknowledge the deed. But she also testifies the same thing in relation to a large number of other conveyances running through a long series of years, purporting to be signed and acknowledged by her, in relation to some of which she is directly contradicted by other and disinterested witnesses.
I infer from the testimony that her memory is not good, and that she is pliant in the hands of her husband. I do *106not impeach her truthfulness, but I cannot safely rely upon her memory. The notary distinctly testifies that she did acknowledge it, and he has officially certified to that fact. He has no interest in the controversy, and it -would indeed be most alarming to the owners of property, if the testimony of a party in interest can be allowed to overcome not only the official certificate of the officer, but his oath upon the witness’ stand confirming the truth of the certificate. Little weight is due to the testimony of Mrs. Harrison, a relative of the plaintiffs. It is negative in its character. She did not know of Mrs. Morris being in the city about the date of the acknowledgment. Yery likely; and yet Mrs. Morris may have been there and returned the same day with her husband. The unreliability of Mrs. Harrison’s testimony as to dates, was very satisfactorily exposed on the cross-examination. Without anything to fix or rivet the date in her mind, she undertook to state the condition of Mrs.-Morris’ health, and that she did not visit her house (where she was in the habit of visiting), in a certain month four years before. She was utterly unable to fix any other date or month, except the very one when the acknowledgment to the trust-deed bore date.
My observation and experience with respect to the testimony of experts in handwriting have given me a very poor opinion of its value. I have seen many such cases tried, and I have never failed to see about an equal number of skilled witnesses on each side, the one affirming and the other denying the genuineness of the disputed signature.
It is no unusual experience, in trials of this kind, to hear the opinion of ten or twenty experts on the one side met by the counter-opinion of an equal number on the other. I do not deny that some weight is due to this species of testimony, but it is generally very unsatisfactory. , This case forms no exception; the experts differed as usual. Taking the testimony of the experts alone, no court could see its *107way, clear to any satisfactory conclusion, and no court would, on the strength of it, disturb the title of Iona fide purchasers for value.
Other circumstances to my mind make strongly against Mrs. Morris’ case. I mention a few: 1st. She did know of the trust-deed, and that it purported to be signed by herself ¡ and that it embraced the homestead, and she knew this before the sale, because her attention was specifically called to the fact, and she saw the trustee’s published notice of sale. She not only did not interfere to prevent it, but it is not shown that she either there, or at any time, set up the claim to any one (although she saw and conversed with the defendants’ agents on the subject of the farm, the property, the sale, &c.), that she did not sign or acknowledge the trust-deed. 2d. After the sale, she left the premises and moved into Iowa City. 3d. While she is the party who is nominally prosecuting this cause, the real party is the husband, who, with this view, found it necessary, indispensably so, to obtain possession of the homestead. He effectuated this by leasing from the lessee of the defendants the homestead portion of the farm shortly preceding the institution of this suit. He recognized, thereby, the title of the defendants. When he obtained possession by this means, he, and not the wife, employed counsel and set in motion all the enginery of the law. She appears in it only when it is necessary to sign some pleading, or to give in her testimony.
I might set forth, with more precision and detail, the circumstances which fortify the general conclusions thus announced, but it would not affect the result.
In my judgment, the case was most fitly, most exactly, most truthfully characterized by the defendants’ counsel, on the argument, when he, in substance, described it as the offspring of fraud and forgetfulness; fraud on the part of the husband; forgetfulness on the part of the wife. I think the decree of the District Court should be affirmed.