
    The Albany County Savings Bank, Resp’t, v. Thomas McCarty et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 15, 1893.)
    
    1. Mortgage—Proof of execution.
    The acknowledgment on a bond and mortgage is presumptive, but not conclusive, evidence of the due execution thereof.
    
      % Same.
    The mortgage in question was duly acknowledged, but the commissioner who took it testified that it was taken at his office, and that he did not remember of being at the home of the mortgagor about the time of its date, and that he was not certain that the person making the acknowledgment was the deceased mortgagor; while it was shown that the mortgagor was sick at home at the time, and it appeared that on said date she executed other papers before said commissioner. Held, that the evidence raised a question of fact for determination by the referee, and that his finding that the paper was executed would not be disturbed.
    3. Same—Direction for judgment.
    A statement in the report of the referee that the plaintiff is entitled to judgment of foreclosure and sale and for deficiency, if any, is a sufficient direction for the entry of such judgment.
    ■ Appeal from judgment of special term, ri idered on the report ■of a referee for foreclosure ■ and sale of mortgaged premises, and also from orders recommitting the report to the referee, and modifying the first order, and directing final judgment.
    
      Gleason & Dugan (P. C. Dugan, of counsel), for app’lts; Lansing Hotaling (E. Countryman, of counsel), for resp’t.
   Putnam, J.

This action was brought upon a bond and mortgage, claimed to have been executed by defendant, Thomas McCarty, and by Ellen McCarty, deceased, his wife, on April 25, 1887, upon premises of the latter, to secure the payment of $8,000 one year from date. The relief demanded in the complaint was the foreclosure of said mortgage and judgment for the deficiency, if any, against said Thomas McCarty individually, and as administrator of Ellen McCarty, deceased.

The defendants, Mary E. McCarty (of full age) and John J., Thomas, Jr., Frank, Augustine and Agnes McCarty (infants), by their guardian ad litem, as heirs at law of Ellen McCarty, deceased, interposed answers denying the execution of said bond and mortgage by deceased. The issues were referred, and the referee found in favor of the plaintiff. The only question litigated before him was as to the execution of the papers in question by the deceased.

On the trial plaintiff, having read in evidence the bond and mortgage on which the action was brought, and which, being duly acknowledged, proved themselves, rested. The acknowledgments on said papers was presumptive, but not conclusive, evidence of the due execution thereof. Sudlow et al. v. Warshing et al., 108 N. Y., 520-522; 13 St. Rep., 812.

On such acknowledgments, unless impeached by competent evidence, the referee could properly determine that the mortgagors duly executed said papers. It is well settled that there is a strong presumption that 9 deed properly acknowledged and recorded was in fact duly executed. As said in Pierce et al. v. Feagans, 39 Fed. Rep., 587-592: “ The record is in due form of law, and it is aided by the presumption that always attends the acts of public officers, that the duty devolved on the officer was properly performed in the manner stated.”

Plaintiff having rested on the strong and satisfactory evidence of the due execution of the said bond and mortgage arising from the proper acknowledgment thereof, it was for the defendants to answer that testimony. The principles applicable when such a state of facts appears are considered in many reported cases, some of which are referred to by counsel for respondents. These authorities hold that: “the evidence to impeach the certificate of the acknowledgment of a deed must be so full and satisfactory as to convince the mind that the certificate is false or forged. A mere suspicion or preponderance of evidence less than sufficient to establish a moral certainty to that effect is insufficient. Griffin v. Griffin, 125 Ill., 430; Young v. Duvall, 109 U. S., 573.

Remembering this well settled doctrine and after a careful examination and consideration of the evidence in the case, we are of the opinion that we cannot properly reverse the findings of the learned referee on the questions of fact submitted to him, as contrary to the evidence.

Defendants on the trial sought to impeach the certificate of acknowledgments on the bond and mortgage by the testimony of Commissioner Krank, the officer who took such acknowledgments, to the effect that they were taken at his office in the city of Albany, and showing by other witnesses that at that time Ellen McCarty was confined to her bed by sickness and unable to be in Albany. The testimony of the witness Krank also tends to show that he was not certain that the person who made such acknowledgments as Ellen McCarty was the deceased mortgagor, and the woman who in fact made the acknowledgment may have been some other person. He thought he was never at the residence of Ellen McCarty at or about the time the acknowledgments in question were taken. Defendants also show that the signatures to said bond and mortgage were not in the hand-writing of deceased, and produce some testimony tending to show that at that time deceased was unable to execute said papers at her own house.

It will be seen that the defense rests principally upon the testimony of the witness Krank. Theevidence was such that the referee could properly find that at the time the papers in question were executed, deceased, although sick and confined to her bed, was yet able to execute them at her home. There was evidence that on April 25, 1887, the day of the date of said bond and mortgage, she with her husband executed a chattel mortgage to one Shubal Kelly which was acknowledged before said Krank. There was also testimony given by her physicians indicating that at the time mentioned she was in a condition to execute a bond and mortgage.

It was not essential to the due execution of the bond and mortgage that the signature thereto should be in the handwriting of deceased. If she directed another to sign her name to the papers or assented to such signing and afterwards acknowledged the execution thereof, this would be a legal execution. Frost v. Deering, 21 Me., 156; Bartlett v. Drake, 100 Mass., 174; Mackay v„ Bloodgood, 9 Johns., 285; Greenfield Bank v. Grafts et al., 4 Allen, 447.

But the evidence renders it almost certain that deceased om April 25, 1887, was unable to be at the office of Commissioner Krank in Albany. Assuming that the person who made the acknowledgment to the bond and mortgage as Ellen McCarty did so at the said office, as Krank testifies, it would follow that some person on that occasion simulated her.

It was for the referee to determine what credit, if any, should be given to the testimony of the witness Krank thus produced by defendants to impeach his official certificate. The referee heard and saw him, and witnessed his manner of testifying. The witness was not certain that the papers in question were acknowledged at his office, and his testimony was somewhat contradictory and unsatisfactory. The referee could properly under the circumstances disbelieve and disregard such testimony, especially where it tends to impeach and contradict the official certificate of the witness. The referee was not com-, pelled to hold on the evidence of said witness that the bond and mortgage were acknowledged at his office in Albany, it appearing that deceased was not then in a condition to appear at said office. He could properly determine that the recollection of such a witness as to a transaction occurring several years before was not of sufficient weight to impeach his official certificate.

We do not deem it necessary to further discuss the evidence. A question of fact was submitted to the referee as to whether Ellen McCarty did, or did not, execute the bond and mortgage in question. On the one hand the official certificates of the officer attached at the time, and on the faith of which the papers were accepted and recorded, were read in evidence. On the other side was the unsatisfactory testimony of the officer who took the acknowledgment, offered with a view of impeaching his own official certificate. We think the conclusion of the referee was justified by the evidence.

There was no material error in the order sending the report back to the referee for correction, or in the subsequent order modifying the first order. The report at the end thereof contains the following language: “ That the plaintiff is entitled to the usual judgment for the foreclosure of the said mortgage and a sale of said mortgaged premises with judgment for deficiency, if any there should be, against the defendant, Thomas McCarty, individually, and as administrator of the goods, chattels and credits of Ellen McCarty, deceased, together with the costs of this action.”

This is a sufficient direction for judgment. In saying that the plaintiff “ was entitled ” to the judgment as specified in his report, the referee sufficiently directed the entry thereof. Gold v. Serrell, 21 N. Y. Supp., 1078; 51 St. Rep., 141; Hinds v. Kellogg, 13 N. Y. Supp., 922; 37 St. Rep. 356.

On this direction, contained in the referee’s report, plaintiff was entitled to judgment of foreclosure and sale.. Hence the order objected to by the defendants, as to them, was unnecessary and unimportant, as on the report itself plaintiff was entitled to the judgment in fact entered. Of course, as to those defendants who did not answer it was necessary to apply to the court for the usual judgment of foreclosure and sale.

The judgment should be affirmed, with costs.

Parker, J., concurs; Mayham, P. J., not acting.  