Mutual Life Insurance v. Suiter

It seems to be assumed by all the parties that the rights of the appellants in the premises in question were paramount to any which the plaintiff had or could acquire under or by virtue of its mortgage, unless the appellants have in some way foreclosed themselves from asserting the rights reserved and acquired by them under the provisions of their deed to George and Mathias Suiter. It is contended by the respondent, and was in effect held by the trial court, that the appellants, by acquiring a one-half interest in the premises by deed from Mathias Suiter and wife, which contained a clause by which they agreed to assume and pay such mortgage as a part of the consideration for such transfer, effected a release of their liens on the premises, or a merger of them in the title to the one-half interest thus acquired. We do not think that under the evidence in this case that conclusion was justified. The finding of the court that the conveyance to the appellants was accepted by them with the intention of merging their interest in or liens upon the premises with the title conveyed to them is not sustained by the evidence. The principal issue of fact in this case was whether the deed from Mathias Suiter and wife to the appellants was signed and acknowledged by them, and whether they accepted it, or had any knowledge of its provisions. While the trial court found against the appellants upon this issue, the evidence strongly tetided to show that such was not the case. The evidence to sustain the finding of the court was very slight, while a preponderance of the evidence contained in the appeal-book leads to the opposite conclusion. It may be, how *407ever, that it was barely sufficient to sustain this finding, and that the judgment ought not to be reversed on the ground that it is against the weight of evidence, as the trial court had the benefit of seeing the witnesses and hearing their testimony, and could perhaps better determine the credit to be given their evidence. But when we consider the importance of the issue as to the genuineness of the appellants’ signatures to this deed, and the slight .evidence upon which the deed was held to have been signed and accepted by them, it becomes us to carefully examine the rulings rejecting further evidence bearing upon the question of the genuineness of their signatures, as any error in the rejection of such evidence can by no means be regarded as harmless. The only signature of Mary A. Suiter and the only specimen of her handwriting the appellants were permitted to introduce in evidence were the signatures to the answers in this action. They offered in evidence her signature where she had about two years before written her name and place of residence in a book belonging to her or to her family, and also a song which she had written or copied about 12 years before, and to which she had signed her name. The body of the latter, as well as the signature, was written by her. These specimens of her handwriting were offered in evidence for the purpose of comparison. That they were written by her and contained her genuine signature was not disputed or denied. When offered in evidence they were objected taon the sole grounds that they were incompetent, immaterial, and improper. The objections were sustained, and the defendant excepted. The court did not reject this evidence because the genuineness of the handwriting of the papers offered was not proved to its satisfaction, nor upon the ground that the one specimen admitted was sufficient, but upon, the ground that it did not think the evidence either admissible or safe. The purpose of the statute of 1880, as amended by the Laws of 1888, (Laws 1880, c. 36, and Laws 1888, c. 555,)1 was to change the rule of evidence as it previously existed, and to permit a comparison of the disputed writing with the genuine handwriting of the person claimed to have made or executed the instrument or writing in question. Whether this statute was wise or unwise was not for the court to determine: This law was passed by the legislature, and should be fairly administered by the courts. Parties to an action are entitled to avail themselves of the benefit of its provisions, and to a fair opportunity to present for comparison the genuine handwriting of the person claimed to have made or executed the disputed writing. Such was the purpose and intent of the statute. If we assume that the character, number, and sufficiency of identification of the specimens offered for the purpose of comparison is in the discretion of the court, still the discretion to be exercised is a reasonable one, and should be so exercised as to carry into effect the spirit and purpose of the law. It was improper to reject this evidence as unsafe or inadmissible, and the rulings of the court in excluding it are subject to review by this court. We think the specimens of the writing and signature of Mary A. Suiter which were offered should have been received in evidence for the purpose for which they were offered, as the opportunity for comparison would have been greatly improved, and the evidence of the expert witnesses called would have been entitled to much greater weight than when, as in this case. *408the comparison was confined to a single signature, made after the instrument or writing in question. Our attention is called to other exceptions in the case, but it is unnecessary to especially consider them, as we think the'judgment should be reversed for the reasons already stated. Judgment reversed, and a new trial ordered, with costs to abide the event. All concur.