Appeal from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding. Decree affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
This was an action brought by plaintiff, Ethel Haffa, for a declaratory judgment declaring that her signature was forged on a certain deed and that said deed was void insofar as it purported to convey her interest in the subject property. The action also sought a declaration that all subsequent conveyances by the grantees of said deed, Pauline, Dora and Mae Haffa, were of no effect, including their conveyance to defendant, American National Bank and Trust Company, as Trustee. The defendant bank counterclaimed, asking the court to declare that it was the owner in fee simple of the subject property, and that plaintiff had no interest in said property. At the conclusion of its case, the bank obtained leave to amend its answer and counterclaim to include additional defenses and for general equitable relief.
The trial court entered a decree finding that Ethel Haffa had no interest of any nature in the said real estate and that the bank was the owner in fee simple of said property. The court also found that the deed, dated July 5, 1958, conveying title from Titus and Ethel Haffa to the Haffa sisters, was not a forgery, but a valid instrument which was executed by plaintiff's husband, Titus Haffa, on behalf of himself and his wife in accordance with the practice condoned and tacitly approved by plaintiff over many years. The court further found that plaintiff knew of the transfer of legal title and acquiesced in, adopted, ratified and acknowledged such transfer by numerous actions, and that the bank and its predecessors in title have been in adverse possession of said property under color of title acquired in good faith, and during more than a seven-year period have paid taxes on said property. The court also found that, based on its observation and upon the inconsistencies of plaintiff's testimony, she was not a credible witness.
Plaintiff appeals, contending that certain documentary evidence was erroneously admitted without a showing of genuineness or valid execution; that defendants did not establish a course of conduct by plaintiff which would estop her from asserting the forgery; that the court abused its discretion in permitting the bank to amend its pleadings at the conclusion of the case; that defendants failed to prove their affirmative defenses; that adverse possession is not a defense against forgery; and that before possession of one cotenant can be adverse to a cotenant in common, there must be a disseizin or ouster.
The subject property, located at 1240 Lake Shore Drive, Chicago, was purchased by Titus and Ethel Haffa, husband and wife, as joint tenants on February 8, 1955. On June 9, 1958, a deed purportedly signed by Titus and Ethel Haffa and acknowledged by Charlotte Brostow, a notary public, conveyed the property to Pauline, Dora and Mae Haffa, sisters of Titus. Title was held by LaSalle National Bank as trustee for the sisters. The sisters lived in the building from 1957 until the time of this suit; Titus and plaintiff lived next door. Titus and plaintiff used space in the basement of the subject property for storage. On July 10, 1967, American National Bank and Trust Company, as trustee, purchased the property from the sisters. After the purchase by the bank, the sisters continued to live in the property by virtue of a lease.
Plaintiff testified that she did not sign the deed in question, and that she did not authorize anyone to sign it for her. An expert examiner of questioned documents testified that in his opinion the signature on the deed in question was not that of plaintiff.
Plaintiff testified that she paid $150,000 for the property. It was brought out at trial that the purchase price actually was $80,000. She testified that she gave the money to her husband for the purpose of the purchase; she had stated at her deposition that she gave the money directly to the seller. Plaintiff also testified that she customarily signed documents herself, and had never given anyone authority to sign her name.
Defendant then introduced into evidence some 100 documents to establish that for more than 20 years someone had been signing plaintiff's name on legal documents. The evidence established that plaintiff never objected to having her name signed in any of these transactions, and that the deed in question was the only one she disputed. It was shown that she was the owner of a one-fourth interest in a racetrack, but that she did not sign or authorize anyone to sign the document accepting that interest. Certain credit guarantees purportedly bearing her signature were not signed by her, although she knew that credit was obtained for the purpose of remodeling the racetrack. The signature as a comaker of a certain note was not hers, but she later signed a letter to the lender pertaining to that note. Plaintiff had also disposed of certain property which she owned by eight deeds, some of which were not in her handwriting. However, she claimed none of that property as hers, and conceded that she was no longer in title. Someone had also signed plaintiff's name on an industrial lease in 1960, and she had accepted the benefits of that lease.
Plaintiff's federal income tax returns were introduced to show that she did not declare any rental income or tax deductions on the subject property. The sisters, on the other hand, did claim federal income tax deductions for real estate taxes on the property. In addition several of plaintiff's statements of financial assets were introduced and in these she did not claim to own the subject property.
Charlotte Brostow testified that she did not recall notarizing the deed in question, although it bore her signature as notary. She had been Titus Haffa's secretary for 20 years. About six months prior to trial, she had a telephone conversation with plaintiff, in which the latter said that she thought that the property in question was too expensive for the sisters to maintain, and that they ought to sell it.
Henry Pollenz, an attorney, testified that he had represented Titus Haffa for more than 25 years. He had seen Titus sign plaintiff's name to legal documents several times. Specifically, he had seen him sign plaintiff's name to a deed regarding certain Wisconsin realty. He also testified that plaintiff and the sisters had abided by all business decisions made by Titus without questioning them.
Pauline Haffa testified that the sisters paid no consideration for the property in question.
We need only consider whether the evidence supported the trial court's finding that plaintiff failed to meet her burden of proving that her signature on the deed was forged, and whether she approved and impliedly consented to the deed in question.
The essential elements of a forgery are a false writing or alteration of some instrument in writing, the instrument as made must be apparently capable of defrauding, and there must be an intent to defraud. The false signing of another's name to a document without an intent to defraud or deceive someone does not constitute forgery. People v. Fore, 384 Ill. 455, 51 N.E.2d 548 (1943); ...