When most people think about the kinds of cases that are litigated at the Land Court, forensic analysis of evidence is not likely at the forefront of their minds. Most people likely think that those kinds of juicy cases are reserved for criminal trials in Superior Court.
But, from time to time, the Land Court hears real estate cases requiring forensic expert testimony. For anyone interested in real estate law, these kinds of cases can make for some interesting reading, like the very recent case of Allen v. Allen, 2013 WL 139318, 10 MISC 420492GHP (Mass. Land Ct. Jan. 10, 2013). In the Allen case, the opposing parties were brother and sister with competing claims of ownership to their deceased parents’ home.* The sister’s complaint had two counts: fraud and conversion. The basis of the sister’s claims was an alleged forgery of a deed that purportedly conveyed the property (during the mother’s life) from mother to mother and son as joint tenants.
Perhaps it goes without saying that the alleged forged deed was procured by the brother before his mother died, and that it conflicted with a later deed that supports the sister’s claims. In any event, the purportedly forged deed had both the mother’s signature and a notary public’s signature (but more on this later).
Factually, the case is worth the read in its own right if only for the sibling drama and conflicting testimony. But what is even more intriguing is the level of detail involved in the handwriting analysis of the allegedly forged deed.
Just look at some of the Court’s (Piper, J.) highly scrutinized findings of fact related to the forensic analysis of the signature on the deed in question:
32.The Q1 [signature in question] signature was naturally prepared, that is, it was executed by hand. There are several indications in the Q1 that it was created quickly, as one would expect with a signature, and was not a labored drawing, or a tracing. Variations in pen pressure also support this conclusion.
33. The Q1 was created with a ballpoint pen. Several so-called “goop marks” created when a build up of ink and paper fibers from a ball point pen are deposited on the page-are present in the Q1. Several of the known signatures also contain goop marks in the same general area as the Q1, another indication of genuineness.
35. To begin, there are many similarities between the Q1 and known examples of Ethel Allen’s signature. The ‘t,’ ‘h,’ and ‘e’ in the word Ethel are very consistent with known signatures. Aspects of the capital ‘M’ in the Q1 are consistent with the known samples: the arches of the ‘M’ are pointed and form a ‘V in the middle, and the ‘V does not descend to the baseline, features which are consistent with known signatures. The final ‘l-e-n’ in the word Allen is highly consistent with the known examples. The relative height of the two ‘l’s in Allen in the Q1, the first being shorter than the second, is found in almost all of the known examples analyzed.
36. The initial capital ‘E’ in “Ethel” in the Q1 at first appears totally wrong. Instead of a tall epsilon shape, it more resembles the numeral 6. Totally missing is the middle loop, which is present on virtually all of the known samples. The initial capital ‘E’ is so different, in fact, that one might wonder how a forger could possibly be satisfied with it. Without more, this would appear to be a significant difference; however, there is one known sample with a very similar capital ‘E’ and that is K1-17.
After a few more similar findings of fact, the Court ultimately finds that the mother’s signature on the deed in question is not a forgery.
But not so fast. The brother ultimately still does not prevail in the case.
The reason is a cautionary one for counsel (perhaps especially those that are also notaries public): there was enough evidence in the case to indicate that although the mother actually signed the deed, she did not do so in the physical presence of the notary public who notarized it. In fact, the facts (as found by the Court) showed that she was not anywhere near the attorney-notary public’s office the day she executed the deed, and that his acknowledgment/notary was added at some point thereafter (assumedly at the brother’s request). Thus, “[s]he did not indicate to the notary that the execution was her free act and deed, at any time after she executed it. She did not sign in his presence, and did not acknowledge the Deed later.” To that end, the Court found that the deed did not provide constructive notice, even though it had been recorded a few weeks after it was executed:
The deed, not in fact having been acknowledged in any fashion, was not ‘entitled to record,’ and so imparted no constructive notice to the Trustees. To hold otherwise would reward a grantee, paying nominal consideration, who puts on record a deed purportedly acknowledged, but which in truth was not.
Perhaps the ultimate lesson here is that it is never a good idea to notarize deeds-even those purportedly signed freely-after the fact, much less outside the presence of the grantors. Aside from the duties and obligations imparted to notaries public on how and when they can notarize documents, Allen reminds us that bad habits and any presumptive inability to “get caught” may ultimately void the underlying transaction, including to the detriment of one’s own client.
* Because the parties agreed to sell the property after the start of litigation but prior to trial, the relief being sought ultimately turned on who was entitled to the proceeds being held in escrow.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.