majority">Casspday, O.. J.

The vital point to be determined is whether the evidence was sufficient to take the case to the jury on the question whether Christian Larson executed the deed of January 29, 1894. The rule is well established that, to set aside a deed, duly witnessed and acknowledged, the evidence must be clear, satisfactory, and convincing beyond all reasonable controversy. Linde v. Gudden, 109 Wis. 826, 328, 85 N. W. 323, and cases there cited. The defendants were notified to produce the deed in question upon the trial, but they failed to do so. Its absence was not very satisfactorily accounted for, as indicated in the statement of facts. The defendants rely upon the record of the deed, made about sixteen months after the alleged execution of the deed. The difficulty of proving that the signature to a deed, not produced so that the same may be inspected, is a forgery, is very obvious. Such difficulty is increased where, as here, there are no witnesses nor witness to such execution. True, it appears from the evidence that the deed was “executed and acknowledged according to the laws” of Illinois, before a notary public, who certified that it was so executed and acknowledged, and hence, under our statutes, it was entitled to record. Stats. 1898, secs. 2218, 2219, 2232. Being entitled to record, the record thereof was admissible in evidence, subject to “be rebutted by other competent evidence.” Sec. 4156. But in the absence of the original, such record, without witnesses or *195witness, leaves tbe conveyance supported only by the presumptions of the truthfulness of the certificate of acknowledgment, and the testimony of the notary public taking the same in support of it. The certificate of the notary declares that Christian Larson and his wife and brother, Carl, “personally .appeared before” him on January 29, 1894. It conclusively appears from the evidence that the certificate in that respect is false. The trial court conceded that there was “considerable testimony to the effect . . . that it was impossible for him [Christian Larson] to have been in the city of Chicago on the 29th of January, 1894,” and that the “circumstances” were “very suspicious.” The ruling of that court was based upon the theory that the certificate of the notary was false, so far as the date was concerned, but that it was possible that Christian Larson signed the deed at some other time. A summary of the testimony of the notary is given in the statement of facts; and it is, to say the least, very unsatisfactory. It is undisputed that at the time it is claimed that the deed was executed Christian and his brother, Carl, were both in northern Wisconsin, where they remained three months after such alleged execution; and that the plaintiff’s mother was in the hospital, where she had been for more than a month, and where she continued to remain for nearly a month afterwards, and where the plaintiff was bom, February 4, 1894. According to her testimony, some time after her husband was dead, she, at the request of Albert, “signed on a piece of empty paper,” in the presence of the notary, who said •she would not thereby sign away anything, and that Albert would give her some money, and that she never signed with her husband. Carl testified that he signed the deed two months after the death of Christian, and that that deed was not signed by Christian, and that Christian never signed the deed that he did. That testimony seems to be undisputed, except by'the notary, as stated. The fact that the deed was not recorded until four days after Carl claims to have signed *196it, and more than two months after Christian’s death, and nearly sixteen months after it is certified to have been executed, would seem to corroborate the claim of the plaintiff. We must hold that the evidence was sufficient to take the case-to the jury.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Citation profile

How this case has been treated — in progress