
    The Mutual Life Insurance Company, of New York, App’lt, v. Mathias Suiter et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    1. Evidence—Forgery—Comparison op handwriting.
    Upon an issue 6f the genuineness of signatures to a deed, in which the appellants,as part of the consideration for the purchase of certain premises, assumed a mortgage thereon, the appellants testified that they never signed nor accepted said deed. It was claimed that Mary 8., one of the defendants, had signed for herself, her sister and mother. The deed to appellants only conveyed one-half the farm, while the value of the whole was not more than the mortgage assumed. The court restricted the proof by comparison of documents to the signature of Mary to the answer in this action and refused to allow comparison to be made with a signature written by her two years before, or with signatures and writing made by her twelve years prior. Held, error.
    2. Same.
    The exclusion of such evidence could not be said to be harmless. It was rendered competent by chap. 36, Laws 1880, as amended by chap. 55, Laws 1838, and whatever the views of the trial judge may have been as to its value or safety, he should have received it.
    Appeal from judgment of tlie supreme court, general term, fourth department, reversing judgment of foreclosure in favor of plaintiff rendered at special term.
    Sometime prior to April, 1876, Mathias Suiter owned a farm in Onondaga Go., and he died intestate leaving his widow, the defendant, Ann Suiter, and his children, the defendants Mathias Suiter, George Suiter,' Mary Suiter, Ann Suiter, and Barbara. Shepp, his only heirs at law. On the 12th day of April, 1876. the widow and daughters conveyed their interest in the farm to the sons Mathias and George by a quit claim deed, containing, however, the following reservations; “This conveyance made subject to the support in every respect, maintenance, care, medical attendance and clothing of Ann Suiter, the widow of Mathias Suiter, deceased, and Ann Suiter, the daughter suitable and proper to their station in life, to be furnished by the parties of the second part, their heirs, executors, administrators or assigns, to them during their natural lives and the life of the survivor of them, which support in every respect, maintenance, care and medical attendance and clothing of the said Ann Suiter, the mother, and Ann Suiter, the daughter, is hereby made a charge and lien upon said, premises during their natural lives and ihelife of the survivor of them. And this conveyance is also hereby made subject to the payment by the parties of the second part, their heirs, executors, administrators and assigns, upon the decease of Ann Suiter, the mother, of the sum of $500, without interest, to Mrs. Barbara Shepp, or her legal heirs, and the sum of $500" to Mary Suiter, or her legal heirs, which payments are hereby made a charge and lien upon said premises as a .part of the purchase price thereof. All of which covenants, agreements, charges and conditions said parties of the second part hereby assume and covenant and promise to fulfill and perform.”
    Subsequently, on the 27th day of June, 1887, Mathias Suiter and George Suiter borrowed of the plaintiff the sum of $3,500 upon their bond and a mortgage upon, the farm executed by them and the wife of Mathias. This mortgage contained a covenant warranting the quiet and peaceable possession of the farm by the mortgagee. At the time of giving the mortgage the mortgagors, Mathias and George, made affidavit that the premises were unincumbered. The search made at the time of the loan by the plaintiff showed the quit claim deed above mentioned, but did not disclose or mention the reservation made by the grantors therein. After default by the mortgagors in the payment of interest on the mortgage, the attorney for the plaintiff discovered the reservation in the quit claim deed, and that the title of Mathias and George was defective, and then he devised a scheme to perfect the title in the mortgagee by subordinating the interests of the widow and daughters in the farm to the lien of the mortgage, and for that purpose he prepared a quit claim deed of the premises, dated Uovember 1,1888, to be signed by Mathias Suiter and wife as grantors in form to convey his interest in the farm to the widow and the daughters, Ann and Mary. That deed was. executed by Mathias Suiter and his wife as grantors, and appears also to have been executed and acknowledged by the grantees, and it contains this clause: “ All .that tract or parcel of land * - * * being that part of lot 46, Manlius, M. Y, which was owned in his lifetime by Mathias Suiter * * * and the same premises mortgaged to the Mutual Life Insurance Co., of Mew York, by Mathias Suiter and wife and George Suiter, dated June 27, 1887, f< r $3,500, and recorded July 27, 1887, in Onondaga county clerkjs office, in book Mo. -239 of mortgages, at page 144, and the parties of the second part hereby assume and agree to pay said mortgage as part of the consideration of this conveyance
    
    Upon this deed the names of Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, the daughters, were all signed in the same handwriting, the two former by a mark.
    In August, 1889, the plaintiff commenced an action for the foreclosure of the mortgage, claiming that by the deed of Movember 1, 1888, the interests of the defendants, the widow and two daughters, had become subordinated to the lien of its mortgage, and they answered in the action and denied the execution of that deed. ' Upon the trial they claimed that their signatures to the deed were forgeries, and that the signature of the notary public who appeared to have taken their acknowledgments was a forgery; and whether or not they were forgeries was the main question litigated upon the trial. The trial judge held that the signatures were genuine, and gave judgment of foreclosure in favor of the plaintiff. Upon appeal" by the defendants to the general term that judgment was reversed, and then the plaintiff brought this appeal.
    
      William G. Tracy, for app’lt; George Í1. Sears, for resp’ts.
   Earl, J.

At the date of the quit-claim deed claimed to • have been executed by Mathias and his wife to the widow and two daughters, and also by them, the widow was upwards of seventy-three years old, and the daughter Ann was a cripple, having been born without arms, and neither she nor her mother could write. The whole farm at that time, only one-half of which was conveyed to them by Mathias and his wife, was probably not worth more than the amount, of the mortgage. It does not appear that the widow and two daughters had any benefit whatever from the money loaned upon the mortgage, or that they had anything whatever to do with the loan. At the time of the execution by Mathias of the deed he was not living with his mother and sisters, and had not been for years; and it does not appear what his relations with them were. It is in the highest degree improbable that the widow and two daughters would consciously and intelligently, for a conveyance of one-half of the farm, assume the payment of the mortgage subordinating their interests in the farm, their only means of support, to the lien of the mortgage; and it would seem that very strong proof ought to be produced that they were fairly and honestly treated and advised before such an instrument should be given operation against them.

Upon the trial of the action the claim of the plaintiff was that ■the defendant Mary A. Suiter had written her own signature and the signatures of her mother and sister Ann to the deed, and that then her mother and sister had each made her mark. She testified positively that she did not write the signatures; that she did not acknowledge the deed, and that she never heard of the deed until about the commencement of this action, when it was found in the county clerk’s office by her attorney. The widow and the daughter Ann also testified that they did not execute the deed or acknowledge it. The defendants called expert witnesses who testified by comparison of the signatures on the deed with the signature of Mary A. Suiter to the verification of her answer in this action, that the signatures upon the deed were not written by the same person who wrote the name to such verification. The plaintiff called an expert witness who testified that he believed that the three signatures were written by the same person who wrote the name of Mary A. Suiter to the affidavit upon the answer to the complaint; and the plaintiff also gave some evidence of statements made by the widow, and also upon her cross-examination, tending to show that the deed was actually executed and delivered to her.

While the defendants were putting in their evidence upon the trial, and for the purpose of having a larger number of Mary A. Suiter’s genuine signatures in evidence for comparison with the alleged forged signatures, she produced a signature which she said she had written two years before; and the defendants’ counsel offered to put it in evidence. Plaintiff’s counsel objected to it as incompetent, immaterial and improper, and on the further ground that it was written with a pencil. The trial judge then remarked: “ I don’t think the signature of a party written on a loose scrap of paper at some time or another should be put in evidence. I will sustain that objection. It would be a dangerous rule to adopt. I will sustain the objection on that particular piece of paper.” The same witness then produced two of her signatures written, one fourteen and the other twelve or thirteen years before the trial, and testified that she had written them at the times mentioned; and defendants’ counsel offered to put them in evidence for the purpose of comparison.

Plaintiff’s counsel objected to them on the same grounds as before, and the trial judge said: “I will exclude the evidence and give you an exception. I don’t think this evidence is either admissible or safe.” It will be observed that these three signatures were not excluded upon the ground that they were not sufficiently proved, or that the judge was not satisfied that they were genuine. We agree with the general term that these signatures should have been received in evidence for comparison. They would have given to the expert witnesses a wider range for comparison. As it was, the only signatures they had for comparison with the alleged forged signatures were the signatures of Mary A. Suiter to her affidavit upon the answer, and the signature of Ann Suiter to her affidavit upon her answer in this action, which was written by Mary A. Suiter. So that there was in evidence for comparison only one signature of the name of Mary A. Suiter, with which the experts could compare the alleged forged signature. We think the range of comparison was altogether too. narrowly limited, and that it could not be. thus' arbitrarily confined. It cannot be said that the exclusion of this evidence was harmless. It was rendered competent by the act, chapter 86 of the Laws of 1880, as amended by the act, chapter 555 of the Laws of 1888, and whatever the views of the trial judge may have been as to its value or safety, he should have received it

For the rejection of this evidence the judgment was properly reversed at the general term, and its order should be affirmed and judgment absolute rendered against the plaintiff, with costs.

All concur (Finch, J., in result), except Peckham, J., not .sitting. • 
      
       Affirming 33 St Rep., 553.
     