SHOOK v. Рвостов. deny that said Proctor and Lyon borrowed said one thousand five hundred dollars, or that the deed was executed to Cowell as security, at all, or that there was any agreement to that effect. They allege, and said Cowell insists, that he, Cowell, took possession, as charged in said bill, but not as tenant of said Proctor and Lyon, "but as a bona fide purchaser for a valuable consideration as stated in said deed; and said Cowell further answering says he is a bona fide purchaser in good faith and for a valuable consideration, of said premises in complainant's bill of complaint described." (This is the entire allegation as to his being a bona fide purchaser.) The defendants say they are unable to state any thing in regard to the title of said Oliver A. Proctor to said Iowa lands, nor can they or either of them say that the paper shown to said Shook purporting to be a certificate of some officer in Buena Vista county, Iowa, was genuine or not; but they positively deny that they had any thing to do in getting up said paper, nor do they know any thing as to who did get up said paper, but they believe it to have been all right, and deny that in any respect they did any thing to deceive said Shook or said complainant, On the 27th The original bill was filed July 26, 1870. of November, 1871, a sworn petition was filed on the part of complainant for leave to file a supplemental bill, which was granted. This supplemental bill sets forth that complainant has lately discovered that one Wesley Cowell now claims to have some interest in the premises described in the deed to Benjamin Cowell, under a pretended deed from said Benjamin to him, purporting to have been executed, acknowledged and delivered May 15th, 1870, and which was filed for record in the register's office on the 13th of August, 1870, and recorded, etc. But complainant charges that the whole thing is a fraud upon her, got up by defendants to place the title to the premises beyond her reach. [And we may as well say here that we are satisfied from the evidence that this charge is correct, and that this deed, though appearing to SHOOK V. PROCTOR. have been executed and acknowledged on the 15th of March, 1870, was not, in fact, executed and acknowledged until the day, or about the day, of its being filed for record, and long after the filing of the bill.] She further charges that said Wesley is a brother of said. Benjamin Cowell (which is admitted) and knew, or had good reason to know, of the means by which her deed of said farm had been obtained; that he paid no value for the premises, though there may have been a nominal shifting of property to keep up appearances; that he is not a bona fide purchaser of the premises, etc.; that defendants are all together in this matter of obtaining property on the pretense of such western lands, etc.; that said Wesley Cowell also gave back an instrument in the form of a mortgage of the same date, to said Benjamin, of the lands so pretended to be purchased, pretending to secure one thousand four hundred dollars purchase money, to become due by instalments as described; but that said Benjamin well knew how the premises were obtained from her by his brother-in-law and Proctor, and had full notice, etc.; that the amount named in said mortgage represents rather his share in the property thus fraudulently obtained, than purchase money; that said mortgage and deed were made to entangle the title, and as a fraud upon her rights; prays that this deed and mortgage may be declared void as against her. The defendants, Benjamin and Wesley Cowell, answer, insisting upon the validity of the deed and mortgage mentioned in the supplemental bill, insisting that both were executed in good faith and for a valuable consideration, denying all notice of any fraud upon the complainant, and claiming that said Benjamin first, and said Wesley from him, were bona fide purchasers for a valuable consideration, and that said Benjamin holds said mortgage in good faith and for a balance of the purchase money, etc. The circuit court, upon a hearing on pleadings and proofs, found all the material facts stated in the original and supplemental bill, and necessary to sustain the complainant's SHOOK V. PROCTOR. case, to be true; that complainant was induced to make her deed of the Branch county farm by the fraud of the defendants William H. Proctor and Edwin D. Lyon, and that neither Benjamin Cowell nor Wesley Cowell was a bona fide purchaser, and that the deed from Benjamin to Wesley Cowell, and the mortgage given back, were in fraud of complainant; and made a decree granting substantially the relief prayed for by the bill. We have examined the pleadings and the evidence in the case with much care, and an anxious desire to reach, if possible, the truth of the case. The evidence is very conflicting, and if it depended upon the number of witnesses to material facts, or the mere force of unqualified assertion, we should be compelled to find in favor of the defendants. We do not intend to enter upon a full discussion of it here; but considering the nature of the case, with all its surroundings, and the interests and motives of the parties, we cannot resist the belief that much of the testimony on the part of the defense, to facts most material to the case, is greatly overstated, if not in some instances entirely invented, to meet the exigencies of the defense. The effort which is clearly manifest on the part of some of the defendants, and some other witnesses in their behalf, to make their testimony very pointed and strong, and to establish the defense beyond all question, has had the opposite tendency upon our minds, by rendering it unnatural and impossible. Upon the whole case, we think the conclusions arrived at by the circuit judge were correct. Upon the question of the burden of proof of want of title to the Iowa lands, it is proper to say, that the answer in the present case is slightly different from that in the Robert Shook case, as it is not quite so open to an implied admission of the want of title; while it nowhere asserts or insists that the title of Oliver A. Proctor was good, the substance of the answer is, that they knew nothing of the title. In all other respects, so far as they bear upon this question of SHOOK г. Рвостов. proof of want of title, the case falls clearly within the principles discussed in that case, and all the considerations there mentioned apply equally to this. Even Edwin D. Lyon will not swear, when asked the direct question, that he believed at the time of the trade, that Oliver A. Proctor had a good title. Practically it seems not to be disputed, but virtually admitted by the defendants themselves, that this Oliver A. Proctor was a cheat and a swindler. The very certificate which he is said to have furnished Lyon, of his title, is, when carefully examined with reference to the circumstances, suspicious of fraud; and, so far from being calculated to support the idea of a title, tends with considerable force to show there was none, and that it was got up for the purpose of defrauding the inexperienced and unsuspecting. And considering the whole conduct of the defendants, the overstrained efforts to show, not only that they did not induce Jacob Shook to trade, or make any representations that the title was good, but that they advised and even implored him not to trade, nor to trust to the title without examination, show that practically they did not claim there was a title. But this and the other considerations stated in the case of Robert Shook, which are equally applicable here, tend strongly to show that they knew, or had good reason to believe there was none, and practically admitted the fact. We think, therefore, the evidence was such as to establish a prima facie case of want of title in Proctor, and that it devolved upon the defendants to show such title, if it existed; and this they have utterly failed to do or to attempt, except by the suspicious certificate already alluded to, which, in our view, is of itself strong evidence against the existence of such title. But in addition to this the complainant has affirmatively shown, by a certificate of the commissioner of the land office, that, as to eighty acres of the land at least, Proctor had no title, and that this part of the land had been purchased at the land office by another person in March, 1869, and patented August 20, 1869. 27 MICH.-49. SHOOK v. Рвостов. Upon the whole case, therefore, we think the decree of the circuit court in chancery should be affirmed, with costs in both courts, to complainant. The other Justices concurred. James L. Perkins v. The People. Forgery: Evidence: Collateral issue. On a trial upon the charge of the forgery by raising it in amount, of a mortgage given on a purchase of land, and of uttering the same as genuine, evidence that the prisoner produced in a chancery cause relating to this mortgage, a quit-claim deed, which he had proposed to give on the sale of the lands but which had been rejected by the purchaser and one with covenants substituted for it, and testified relative to a pen used to write it, and endeavored to account on a comparison of the deed with the mortgage for some suspicious appearances in the writing as to the consideration and sum to be paid by the mortgage, is not so far foreign to the issue at bar as to preclude the prosecution, who have put it in, from showing that, Instead of the facts being as the prisoner had explained, the draft of the quitclaim deed had been altered also, as to the consideration, so as to make it correspond with the altered mortgage; such evidence of the falsity of the explanation is both pertinent and material. In such a case it is also competent for the prosecution to show that the sum mentioned as consideration in the mortgage in question, as well as that expressed in the condition, had been altered. Value: Evidence: Offers: Hearsay. On the subject of value of land, it is not competent to show generally what a neighbor was offered for adjoining lands; such evidence would be mere hearsay. Forgery: Uttering. The putting of a forged mortgage on record is a sufficient uttering. Collecting money upon it and endorsing the payments is also a sufficient uttering, whether the instrument itself was produced at the time of payment or not. Exceptions: Practice in supreme court. Exceptions to the charges to the jury on the weight to be allowed to the prisoner's statement on the trial, will not be considered on a record which does not show that the prisoner made any state ment. Submitted on briefs May 14. Decided July 11. Error to Lenawee Circuit. Fidus Livermore and C. A. Stacy, for plaintiff in error. Byron D. Ball, Attorney General, for the People. |