#### Maye B. Hallohan, as Committee of Mary Buchnowski, Plaintiff, *v.*Carrie Rempe et al, Defendants.

(Supreme Court, Kings Special Term for Trials,

January, 1910.)

Acknowledgment — Certificate — Presumptions.

The presumption of the due execution of a deed arising from the certificate of its acknowledgment before a proper officer can only be overcome by clear and convincing proof.

It is not overcome by the testimony of the officer who took the acknowledgment that he cannot recollect the grantor and his subsequent statement that she was another person and by additional proof that the grantor had been adjudged insane and was confined in an asylum in another State seventeen months prior to the execution of the deed.

Action to set aside a deed of real property as a cloud upon the title.

Edwin D. Hamlin, for plaintiff.

Sackett & Lang, for defendants.

*28Crane, J.

On the 25th day of May, 1900, one Frank B. Smith and Mary B., hjs wife, conveyed certain premises situated in Kings county by deed duly executed to Carrie Bempe. This deed was duly recorded; and, thereafter, the property was conveyed some five or six times, until purchased in good faith and for value by the defendants Block and Goldstein. :

On May 25, 1909, Mary Buchnowski (an incompetent), through her committee, brought this action to set aside the' deed of Smith to Bempe, made in May of 1900, in so far as it attempted to convey the dower interest, alleging that Frank B. Smith was Frank Buchnowski and the plaintiff was his wife and had never signed the said deed, her alleged signature thereto being a forgery.

The deed thus attacked was signed by Frank B. Smith and Mary B. Smith in the presence of G. Winslow Powell, a notary, the acknowledging clause reading as follows:

> “ State of Hew York, d *“*County of Kings, V “ City of Hew York. J

> *“*On this 25th day of May in the year one thousand nine hundred, before me personally came Frank B. Smith and Mary B., his wife, to me known and known to me to be the individuals described in and who executed the foregoing instrument, and they thereupon duly acknowledged to me that they executed the same.

> “ (Signed) G. Winslow Powell,

> “ Hotary Public, 105,

> “ Kings Co., H. Y

It is conceded that Frank B. Smith was Frank Buchnowski, having assumed that name many years ago for reasons not given; and the presumption w.ould he that his wife’s name followed the change made by her husband.

What is the force of the presumption arising from the due acknowledgment of this deed ? As stated in Albany County Savings Bank v. McCarty, 71 Hun, 227, “ the acknowledgments on said papers were presumptive, but not conclusive, *29evidence of the due execution thereof. * * * 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 even preponderance of evidence less than sufficient to establish a moral certainty to that effect is insufficient.”

This case was reversed in 149 New York, 71, hut this part of it affirmed.

in Young v. Duvall, 109 U. S. 573, where a wife claimed that she had never acknowledged an instrument and that it was procured from her through fraud, the court had this to say: “ The certificate of the officer states every fact essential, under the statute, to make' the deed, upon its being delivered for record, as effectual in law as if Mrs. Young was an unmarried woman. * ** **It was incumbent upon him to explain the deed fully to the wife, and to ascertain from her whether she willingly signed, sealed and delivered the same, and wished not to retract it. * * * To that end he was required to examine her privily and apart from her husband. These facts were to he manifested by a certificate under his hand and seal. Of necessity, arising out of considerations of public policy, his certificate must * * ■ * he regarded as an ascertainment in the mode prescribed by law, of the facts essential to his authority to make it; and if ‘ * * * it can be contradicted, to the injury of those' who in good faith have acted upon it * * * the proof to that end must be of such a character as will clearly and fully show the certificate to be false or fraudulent, ■ The mischiefs that would ensue from a different rule could not well he overstated. The eases of hardship upon married women that might occur under the operation of such a rule are of less consequence than the general insecurity in the titles to real estate which would inevitably follow from one less rigorous.” See also Griffin v. Griffin, 125 Ill. 430.

When the notary certified that Frank B. Smith and Mary B., his wife, appeared before him and acknowledged the execution of the déed, and it appears that Frank B. Smith was Frank Buchnowski, Mary B. Smith, his wife, must have been Mary Buchnowski. The notary certifies that his wife *30appeared. He had but one lawful wife, and that, Mary Buchnowski. The presumption is, therefore, that Mary Buchnowski, the plaintiff in this case, signed and executed this deed, and this presumption can only he overcome by clear and convincing proof. '

What is the proof, or, in the first place, what is lacking in the proof?

The deed of May 2-5, 1900, is not produced; and there is no evidence that the signature thereto of Mary B. Smith wias not the signature or handwriting of the plaintiff. Mary Buchnowski, the wife, did not testify, having been lately adjudged insane; neither did Frank Buchnowski or Frank B. Smith, no very great effort apparently having been made to find him, although his residence is in Rockland county. The woman, Mary Enut, living with Frank B. Smith in 1900, who, it is claimed by the plaintiff, signed this deed as his wife, was not called as a witness.

The affirmative proof offered by the plaintiff consists of facts from which it is said the inference must be drawn that she was not present when the deed was signed, nor in mental condition to execute it on May 25, 1900, and therefore did not. The facts are not unlike those in the Albany Oounty Savings Bank case, above cited.

The notary, G. Winslow Powell, was called as a witness and swore that he did not recollect the person Mary B. Smith, or the talcing of the acknowledgment. When asked if he took the acknowledgment of Mrs. Buchnowski, whom ho saw sitting in court, as Mary B. Smith, his answer was: “ Hot that I remember —-1 cannot recall any of the circumstances in regard to the acknowledgment of that deed. Q. Have you any recollection at all as to what the person looked like whom you took the acknowledgment of to that deed?” A. « Ho, sir.”

Although the witness subsequently said it was not “ this lady,” meaning Mary Buchnowski, yet, in view of his previous statement, he apparently did not recollect the persons or incidents at all.

The only other facts which tend to prove the insanity and absence of Smith’s wife in May of 1900 are' the following:

*31In December of 1902 Maye B. Hallohan saw her mother,Mrs. Buchnowski, in the asylum at Middletown, Conn., and brought her home from there to live with her in April of 1903. On December 21, 1908, this daughter was appointed by the Supreme Court the committee of the person and property of her mother, Mary Buchnowski.

Where was Mary Buchnowski prior to 1902 and in May of 1900? .

The same daughter says that, in 1886, her father took her to an insane asylum in Middletown, Conn., when she was five years old, to see her mother, and that, in May of 1900, her mother was not living with her father.

What the woman was doing in the Middletown asylum in 1886 does not appear; whether or not at that time she was insane is not stated. No evidence whatever is introduced as to the woman’s mental condition at that time, or as to the form of her insanity, if she were mentally diseased. It is common knowledge that people aré sent to public asylums every day for temporary insanity and with recurring spells require intermittent incarceration. Among such forms of insanity are acute mania, acute melancholia, alcoholic insanity and curable dementia. How long Mary Buchnowski stayed in the Middletown institution is left without proof. The books of the asylum would evidently show this, but have not been produced. Considering the various mental ailments and the frequent recoveries there can be no presumption in this case that, because Mary Buchnowski was in the asylum in 1886, she was there in 1900. .

The presumption that insanity existing at a certain time continues does not arise until the nature of the "insanity appears to be of the continuing kind. Gardner v. Gardner, 22 Wend. 526.

Greenleaf on Evidence (vol. 1, § 42) says: “If derangement or imbecility be proved at any particular period, it is presumed to continue until disproved unless the derangement .was accidental, being caused by the violence of a disease.”

In Hix v. Whittemore, 45 Mass. 545, we find this statement of the presumption: “ It is not, therefore, to be stated *32as an unqualified maxim of the law *‘*once insane, presumed to be always insane,’ but reference must be had to the peculiar circumstances connected with the insanity of the individual.. There must be kept in view the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed insanity and. that which may be only temporary.” See also Wright v. Wright, 139 Mass. 177.

The nature of Mrs. Búehnowski’s mental disorder, if she had any, is not given; in fact, no reference whatever is made to it in any part of the testimony. There is no proof even that Mary Buchnowski was an inmate of the asylum and not an employee therein, and no evidence that she was ever committed to the institution or adjudged insane until 1908.

Under these circumstances, there can be no proper inference that Mary Buchnowski was insane or in the asylum in 1900, and certainly not a presumption which would amount to clear and convincing proof.

But, assuming that Mrs. Buchnowski was insane in 1900, it does not follow as a consequence that she did not, or could not, sign the deed of May twenty-fifth of that year. If she did sign the deed as the notary certifies, her insanity would not make it void, but only voidable. Blinn v. Schwarz, 177 N. Y. 252.

The deed would stand until it had been set aside in equity because of the grantor’s insanity. Smith v. Ryan, 116 App. Div. 397-401.

. This action is not brought for any such purpose.

I, therefore, conclude in this case that the very strong presumption of the validity and regularity of this deed, arising from the formal acknowledgment before the notary, has not been overcome by clear and convincing proof, and that the plaintiff has failed in her endeavor to establish that the deed of May 25, 1900, was not signed .and acknowledged by Mary Buchnowski, wife of Frank Buchnowski, alias Frank Smith.

The defendants insist that the evidence in this case, while sufficient to establish Frank B. Smith’s marriage to a Mary B. Smith, or Mary Enut, is not sufficient to establish his *33marriage to Mary Buchnowski. In view of the beautiful devotion shown by the daughter of Frank and Mary Buchnowski, .Mrs. Hallohan, to her mother, I should hesitate a long while before so finding; and I refuse so to find in this case, placing my decision for the defendants upon the grounds above stated.

Judgment accordingly.