Daily Development for Tuesday, March 23, 1999
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
The following case was submitted by a veteran DIRTer who just lost the appeal at the Missouri Court of Appeals level. In my comments, I have tried to supply some useful argument to help her on remand or further appeal, and welcome other contributions from our "brain trust" of creative thinkers.
DEEDS; VALIDITY; FORGERY: The simple fact that the party alleged to have executed a deed was located in another state when a notary allegedly executed the deed and in another country when the deed was recorded do not, in and of themselves, provide "clear, convincing and cogent" evidence sufficient to set aside the deed.
Gregg v. Georgacopolous, No,. 22255 (Mo. App. 3/16/99)
Defendant and Fullerton had owned a home in Springfield, Missori together, but in April of 1989, Defendant conveyed his interest in the property to Fullerton. Four years later, Fullerton, on his deathbed, was being cared for by Plaintiff, who resided with Fullerton in his home. Fullerton executed a "beneficiary deed," granting Plaintiff ownership of the property upon Fullerton's death, consistent with the Missouri "transfer on death" statute, recently amended to cover real property. Plaintiff recorded this deed.
A few months later, Defendant arrived on the scene and an alteraction arose as to whether Plaintiff was providing adequate care to Fullerton. After the police were called, Defendant produced a quitclaim deed of the property of a joint tenancy interest to Defendant, purportedly executed by Fullerton and notarized in Florida in 1989, just over a month following Defendant's deed of the property to Fullerton. This deed had been recorded in Missouri about two weeks after it was allegedly notarized in 1989.
The deed itself was not produced, and the only copy was from the recorder's office. The notary's name was not typed under the notarial signature and the signature itself was illegible.
Plaintiff produced several witnesses to the fact that Fullerton, a college professor, was teaching classes in Missouri on the day that the Florida notarization allegedly occurred. Further, Plaintiff produced evidence that Plaintiff and Fullerton were in France on the day that the deed was recorded. (Presumably Defendant was in Florida at the time, although the court does not mention this.)
The trial court made specific findings that Plaintiff was not in Florida on the day that the alleged notarization occurred and was not in Missouri on the day that the recording occurred. Further, the trial court found that Defendant lacked credibility, and, finally, concluded sspecifically that Fullerton had not signed the deed.
On appeal held: Reversed and remanded. The Missouri Court of Appeals concluded that Plaintiff had not satisfied the burden of proof to produce "clear, convincing and cogent" evidence demonstrating that the deed was a forgery.
The appeals court noted that Plaintiff was not a bona fide purchaser without notice of the deed to Defendant, and that therefore defects in the notarization that might have prevented the recording of the deed to serve as constructive notice to Plaintiff were of no consequence. It then commented that "a suit to have a deed declared void invokes the most extraordinary power of equity . . . Consequently a party seeking cancellation of a deed bears the burden of establishing by clear, cogent and convincing evidence the basis for exercising such power."
It noted that despite a Missouri statute stating that a Missouri statute requires acknowledgement of a deed, Missouri courts have held that lack of a valid acknowledgement does not render the deed void as between the parties and those taking with notice. Plaintiff, it notes, had notice of the deed prior to the effective date if Plaintiff's interest (upon Fullerton's death) and in any event Plaintiff had not given value for his interest.
The court further cited authority to the effect that the lack of a valid date does not invalidate the deed, apparently suggesting that the fact that the date of notarization of the deed was inaccurate does not establish that the deed was void.
The case was remanded to the trial court, and on remand the Court of Appeals indicated that handwriting experts are not necessary to establish that Fullerton's signature was a forgery. The court indicated that evidence from Fullerton's friends and neighbors as to the validity of the signature would have be useful, but was not produced at the first trial.
Comment 1: What if the reason that Plaintiff did not attack the signature itself is that it is a clever forgery and that effective handwriting analysis is impossible when the original signature is unavailable? Is the appeals court, which did not have the witnesses before it, raising an impassable barrier for the Plaintiff to attack this deed even where the trial court, having listened to the witnesses, concluded that Defendant was lying?
Comment 2: Why should a party alleging that a signature on a deed is a forgery have any greater standard of proof to overcome than any other party attacking a contested signature? Until the court determines that the signature is valid, the alleged "deed" is nothing more than a piece of paper, and should not be entitled to any special credence.
The general rule that a deed cannot be overcome absent "clear, convincing and cogent" evidence is applied typically when one alleges that a deed is produced through fraud. But in such cases the grantor actually does sign the deed, and it is appropriate that some high standard of proof be required to overcome the legal significance of the signor's act. But where the grantor never signed the deed at all, then elevating the forged piece of paper to a higher plane more protected from attack, seems to grant a benefit to a forger, especially in cases such as this one, when the interest involves a joint tenancy interest is contested only when the signor is dead.
Comment 3: Some may wonder why the "best evidence rule" doesn't apply. There is an official records exception, and the allegedly forged deed nevertheless was in the official records.
Comment 4: Assuming that handwriting evidence doesn't do the trick, what other arguments might prove useful? Well, there are the facts that the alleged quitclaim deed came only a few months after the parties manifested a contrary intent when the quitclaim grantee had granted his cotenancy interest to Fullerton. Further, there is the evidence that Fullerton had transferred the property to someone else a few years after the alleged deed to Defendant. Unfortunately, the Court of Appeals had all these facts in the record already, and apparently did not deem them sufficient to support the trial court's finding.
Comment 5: What about an argument that there was no delivery? Can facts be mustered to raise the notion that the alleged grantor did not have a "delivery intent" at the time of the alleged delivery? Normally, delivery is presumed from recording. But if, as the court suggests (but does not hold), the notarization did not satisfy standards, because of lack of identification of the notary, then perhaps the presumption of delivery that goes with recording also fails.
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