Opinion
November 10, 1953. Rehearing Denied December 8, 1953.
Appeal from the Circuit Court, Clay County, Charles A. Luckie, J.
T.J. Jennings, Jr., and W.E. Grissett, Jr., Green Cove Springs, for appellant.
Berwick Anderson, Green Cove Springs, for appellee.
Appellee, plaintiff below, brought suit to quiet his title to real estate, claiming a certain deed of record was a forgery and void.
At the trial over objection, appellee was allowed to testify that he did not execute the questioned deed.
The Chancellor held the deed a forgery and ordered its cancellation. From that final decree appellant, defendant below, brings this appeal.
The sole question here presented for determination is whether Section 90.05, F.S. 1951, F.S.A., commonly known as the Dead Man's Statute, precludes the putative grantor in a deed, the named grantee of which is deceased, from testifying that he did not execute the deed.
The Supreme Court of Alabama passed upon the very same type of question under similar circumstances and a statute the pertinent portions of which were similar to that of the instant case. Blount v. Blount, 158 Ala. 242, 48 So. 581, 582, 21 L.R.A., N.S., 755. In there reversing a judgment for defendant for failure to allow such testimony, the Court said:
"* * * A transaction between two parties necessarily implies action, consent, knowledge, or acquiescence on the part of both. Hence, if a grantor never in truth and in fact executed or attempted to execute an alleged deed to a given grantee, he is not and cannot be a party to the transaction, which on its face purports to be the execution by him of a deed to the named grantee.
* * * * * *
"We are not now writing as to the probative force of such proof of execution, filing, and recording of the deed, but as to the conclusiveness of such matters to show a transaction between the grantor and grantee. We hold that the grantor in such document, no matter what its nature, character, or recitals, is not precluded, by such proof, such filing, and such recording, from showing that his alleged signature thereto and his acknowledgment thereto are forgeries and frauds, perpetrated without his knowledge or consent. If this be not true, one man can acquire, for his estate after his death, all the property of another, without the knowledge or consent of such other, and yet do it by due process of law. We say the law is not, and ought not to be, such as to allow such proceedings or results."
We are entirely in accord with the conclusions reached by the Alabama Court.
Affirmed.
ROBERTS, C.J., and SEBRING and HOBSON, JJ., concur.
On Rehearing
The petition for rehearing filed in this cause by appellant points out that in addition to the question decided by us — stated in the opinion to be the sole question presented — there was also presented in the briefs and at the bar of this Court the question of the sufficiency of the proof even though appellee's testimony was held to be admissible.
In the light of appellant's contention we have again reviewed the record. The issue of whether the deed involved was a forgery was a question of fact. The lower Court heard all of the evidence and entered the final decree in which he found the deed "was and is a forgery." The record contains substantial, competent evidence to support this finding and that is all the law requires.
Petition for rehearing denied.
ROBERTS, C.J., and SEBRING and HOBSON, JJ., concur.