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"The defendant and all persons holding under her or claiming to hold under her are forever barred from asserting any rights in and to the property herein described, and it is adjudged that the plaintiff do have and recover the exclusive possession of said premises."

findings of the trial court upon the subject of the alleged misrepresentations.

This array of evidence amply supports the

rent under the lease. The instrument pro- | action which he had commenced against apvided that if any rent shall be due and un-pellant. The judgment rendered in his favor paid, or if default shall be made in any of recited that: the covenants herein contained, then it shall be lawful for the [lessor] to re-enter the said premises and remove all persons therefrom." At the date of the assignment to respondents the controversy between appellant and Haas over the alleged past due rents had actually ripened into litigation, for he had before that time commenced in the superior court his action against her for the purpose of ejecting her from the demised premises because of the [2] In her attack made upon the findings alleged nonpayment. Appellant knew that the action was pending, but during the nego-spondents should have resorted to the remjust mentioned, appellant contends that retiations leading up to the assignment she concealed the fact from respondents. Not only so, but she told them that "it was a good lease," and that she had "a good lease of four or five years," the lease on its face having in fact then over four years to run. The assignment was made September 2, 1919. With this latter fact in mind we quote from the testimony of respondent Humfreville:

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"Q. When was the first time you learned of that suit? A. The next morning after we paid her the money. * **Q. That would be on the 3d of September, would it? A. * * Yes. Q. How did you learn that? A. Well, there were painters painting the house, and the painter told me, Mr. Brown. * * Mr. Powell had gone down town, and I waited till he came home, and I told him, and we wanted to find out about it, and I went in and told Mrs. Mohr not to move out. She had stayed all night, and I told her not to move out till we found out about it. * ** I went in there and asked her about it, and she just said, 'Is that so? Is that so? That is all she would say. So I said, 'Well, don't make any-don't do any more towards moving out till we find out about it.' * She went in the room and made arrangements to move. She collected her little trunk, and her little boy carried it out, and I went out to the doorway and told her not to take it out. She just pushed me aside and carried it out anyway; while she was out I locked her door, and I sat down by the door and I sat there for quite a little while. She came back in; she came back to it, she was going in, and I forbid her to go near the door; she went away and in a little while I opened the door and she had taken her clothes out the window.

*** She just moved out, lifted her clothes

out the window."

This testimony, it is true, relates to occurrences after it may probably be said with truth that the deal between the parties had been closed, but appellant had not yet left the premises and she was thus given the opportunity to make the reparation to respondents which in strict morals was due from her. Under all these circumstances, the evasive character of her answers to Mrs. Humfreville's questions, and her conduct when asked about the suit, show her fraudulent intent in making the representations to the effect that she had a good lease. It finally

edy by means of arbitration which is provided for in the lease in the event of a refusal of the landlord to consent to an assignment. We cannot perceive how this contention bears any relation to the question whether appellant made fraudulent misrepresentations to respondents. Granting, however, that it does, there are several answers to the contention, only one of which need be noted. The result of the litigation between Haas and appellant demonstrates that, at the date of the purported assignment to respondents appellant had no assignable interest in the lease, for the suit was based upon an alleged breach of the terms of the instrument occurring before the assignment was made. Manifestly, the clause concerning arbitration could have had no application except in the case of an assignment made by an actual tenant under the lease, one who was in good standing under it, and who had a transferable interest in it. The provision was not designed to settle the question whether a tenant had power to assign, but whether a purported assignee should take under an assignment. Appellant urges her contention as to the arbitration

clause of the lease in assaults which she makes upon other findings of the trial court, but what we have here said will suffice to dispose of the question wherever it arises.

[3] The trial court found that the judgment in the action between Haas and appellant had become final at the time of the trial of the present action, and it is contended that the finding is without support in the

evidence.

We doubt, but do not decide, whether the finding in question was a material one, for the mere pendency of such an action, if the fact had been made known to respondents, might well have deterred them from dealing with appellant, in view of the consequences possibly to follow from a judgment at any time to be rendered therein unfavorable to appellant. This question we leave, as we are satisfied that the finding is supported by the evidence. Appellant's specific point is that the record fails to show that the judgment was ever entered, in that it "contains no notice of the entry of the judgment as provided by statute." Such a

(230 P.)

and binding effect of judgments does not erations serve effectually to dispose of apdepend upon notice of entry, nor even, it ap- pellant's point that the offer of the judgment pears, upon the fact of entry. It has been was not accompanied by a notice of its entry. said that, where findings and decree were Other points are made by appellant, but signed by a judge, it "was then, and there- they are disposed of by what we have said after, the ministerial duty of the clerk to as to the questions above discussed. enter and docket the judgment, and to pre- Judgment affirmed. pare and file the judgment roll,

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and he could not, by neglecting to perform that duty, destroy or impair the effect of the judgment." Baker v. Brickell, 102 Cal. 620, 36 P. 950.

It is true that for certain purposes it is necessary that notice of the entry of a judgment be given to a losing litigant. For instance, a defeated party must file his notice of intention to move for a new trial, "either before the entry of judgment or within ten days after receiving notice of the entry of the judgment, or within ten days after verdict, if the trial was by jury." Code Civ. Proc. § 659. Such provisions as this surely cannot affect the evidentiary value of a judgment when offered in another action. "A judicial record of this state, or of the United States, may be proved by the production of the original or by a copy thereof certified by the clerk or other person having the legal custody thereof" (Code Civ. Proc. § 1905), and there is nowhere any provision to the effect that a notice of entry of judgment is part of a "judicial record." Especially, it is to be noted that such a provision is not to be found in the section of the code (Code Civ. Proc. $670) which specifies what papers shall constitute the judgment roll, this term of course being the equivalent of the expression "judicial record," when the latter is employed as referring to a judgment and the proceedings leading up to it. See Wickersham v. John

ston, 104 Cal. 407, 38 P. 89, 43 Am. St. Rep. 118; Page v. Garver, 5 Cal. App. 383, 90 P. 481:

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1. Acknowledgment 62 (2) Evidence of nonappearance of party before certifying officer must be clear and convincing to overthrow acknowledgment.

of the execution of a mortgage of real propIn order to overthrow the acknowledgment erty, properly sealed and certified by a duly authorized officer, the evidence that the party attacking such acknowledgment did not personally appear before the certifying officer must be clear and convincing.

2. Acknowledgment 62(4)-Uncorroborated testimony of mortgagor insufficient to overcome certificate of acknowledgment.

The uncorroborated testimony of the mortgagor is not sufficient to overcome the certificate of acknowledgment, regular on its face. 3. Pleading 121 (4)-Denial on information and belief of easily accessible matters of public record is not permitted.

A denial on information and belief of matters of public record, easily accessible to a party, is not permitted.

Appeal from District Court, Bear Lake County; O. R. Baum, Judge.

Action by Christina Sneddon against Robert A. Birch and another. From a judg ment for plaintiff, defendants appeal. Af

John A. Bagley, of Montpelier, for appellants.

Geraint Humpherys, of Montpelier, for respondent.

It is true, beyond a doubt, that if the judg-firmed. ment here in question bore such a date at the time it was offered as to show that it had not ripened to finality under the statute preventing such ripening until the lapse of six months from its entry, the time within which appeals from final judgments must be taken (Code Civ. Proc. § 939), it could not have been received in evidence, but appellant makes no such point, nor does she contend that the judgment was not actually entered, nor that the record does not show that it was entered. As a matter of fact, the judgment was of fered in evidence more than two years after its date. Not only so, but the certificate of the county clerk to the judgment roll of which it is a part, and which was offered in its entirety, contains the recital, "I *

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DUNN, J. This is an action to foreclose a mortgage given to secure the payment of a note in the sum of $650. The complaint alleged that the note and mortgage were executed and delivered by appellants to Thomas Sneddon; that the mortgage was duly acknowledged and afterwards recorded; that thereafter Thomas Sneddon died; that his estate was duly probated, and that the note and mortgage in controversy were decreed to Christina Sneddon, respondent herein.

do hereby certify the foregoing to be a true The appellant R. A. Birch filed his sepacopy of the judgment entered in the above-en- rate answer in which he admitted that he titled action, and recorded" at a certain page signed. the note and mortgage, but denied of a specified judgment book. These consid- | upon information and belief that the estate For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Thomas Sneddon was probated, and de- [ for the wife to acknowledge the mortgage. nied that respondent was the owner and hold- The question was simply whether she did er of the note and mortgage sued on. acknowledge it.

The appellant Olive V. Birch filed her separate answer admitting that she signed the note and denying that she executed or delivered the mortgage to Thomas Sneddon, and further denied that she had acknowledged the mortgage. She admitted the death of Thomas Sneddon, but denied upon information and belief that his estate was probated or that respondent was the owner of said note and mortgage.

The case was tried by the court without a jury. The court found in favor of respondent and entered judgment accordingly. This appeal is from the judgment.

Appellants rely upon the contention that Olive V Birch did not acknowledge the execution of the mortgage; that she did not deliver the note and mortgage to Thomas Sneddon, and that Christina Sneddon was not the owner of the note and mortgage.

Thomas Sneddon's estate was probated in Bear Lake county, where this action was brought and tried. The allegation of the complaint that the note and mortgage were decreed by the probate court to Christina Sneddon was denied on information and belief, which was no denial in law. The allegation was therefore admitted.

[3] A denial on information and belief of matters of public record, easily accessible to a party, is not permitted. First National Bank v. Callahan, 28 Idaho, 627, 155 P. 673; First National Bank v. Walker, 27 Idaho, 199, 148 P. 46; Vadney v. State Bd. of Med. Examiners, 19 Idaho, 203, 112 P. 1046; Bennett Co. v. Twin Falls L. & W. Co., 14 Idaho, 38, 93 P. 789; Work Bros. v. Kinney, 7 Idaho, 460, 63 P. 596; Simpson v. Remington, 6 Idaho, 681, 59 P. 360.

It is immaterial that Olive Birch did not personally deliver the note and mortgage. It is evident that they were delivered and there is no pretense that her husband did not deliver them.

Against the claim of Mrs. Birch that she did not acknowledge the execution of the mortgage, supported by the statement of her husband that she did not acknowledge it on the date given in the certificate, we have the notary's certificate supported by his positive testimony that Mrs. Birch did personally appear before him and acknowledge the execution of the mortgage. The trial court, with the witnesses before it, was the proper tribunal to pass upon their credibility. It found that Mrs. Birch did appear in person before the notary public and acknowledge the execution of the instrument in question, and its decision is sustained by

abundant evidence.

There was no contention by respondent that the mortgaged property was not community property, nor that it was unnecessary

[1, 2] The mortgage here bears a regular certificate of acknowledgment duly signed and sealed by a notary. To successfully attack the validity of such a certificate on the ground that it is false, the proof of the falsity must be clear and convincing. Christensen v. Hollingsworth, 6 Idaho, 94, 53 P. 271; Gray v. Law, 6 Idaho, 559, 57 P. 435, 96 Am. St. Rep. 280; Bruce v. Frame (Idaho) 225 P. 1024. In the latter case this court said:

"The uncorroborated testimony of the mortgagor is not sufficient to overcome the certificate of acknowledgment, regular on its face." Judgment affirmed with costs to respond

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2. Bills and notes 344 Purchaser taking note with installment overdue at date of transfer is not holder in due course.

If, in a promissory note providing for payment in installments, any installment is chaser takes the whole note as overdue paper, overdue at the time it is transferred, the purand is not a holder in due course.

3. Bills and notes 537 (6)-Whether purchaser of note shown materially altered on its face is bona fide holder is for jury.

Where, upon the face of a promissory note, it is apparent from an examination thereof that material alterations have been made in the date, the result of which was to change the time of payment, and that an erasure and change has been made in the amount, and where testimony is introduced by the maker of the note to the effect that the date has been

changed; that he neither authorized the change nor had knowledge of the same, and such testimony is not contradicted, denied, or explained by the holder of the note, the question as to whether the note was regular and complete upon its face when transferred, whether it was transferred before maturity, and whether it

(230 P.)

was purchased in good faith, so as to make the purchaser a holder in due course, were questions of fact properly determinable by the jury.

4. Direction of verdict erroneous.

Held, under the facts of this case, that the court erred in directing the jury to return a verdict in favor of respondent.

promissory note; that the promissory note and conditional sale contract were delivered to Changnon & Co., for the sole purpose, and no other, of submitting the same to an agent of respondent for approval, but that the instruments were never returned, although numerous demands were made for them. Respondent further alleges that the note was materially altered by changing its

Appeal from District Court, Bannock Coun- date from December 7, 1920, to February ty; O. R. Baum, Judge.

Action by the General Motors Acceptance Corporation against George W. Talbott and another. From a judgment for plaintiff, the named defendant appeals. Reversed and

manded for new trial.

14, 1921, thereby changing the time of pay-. Dement of the installments of the note. fendant W. O. Johnson made no appearance. The cause was tried to the court and a jury. re-ed, a motion for directed verdict was made Both sides having introduced proof and restby respondent, which was sustained.

See, also, 38 Idaho, 13, 219 P. 1058.
Arthur W. Holden and Solon Orr, both of
Idaho Falls, for appellant.

H. J. Swanson, of Pocatello, for respond

ent.

Ver

dict and judgment in accordance with the prayer of the complaint was thereupon entered, from which judgment, this appeal is taken.

Numerous assignments of error are made in appellant's brief, and relied upon for reversal of the judgment. We deem it unnecessary to discuss each one separately. It is contended that the court erred in admitting in evidence the note sued upon, Exhibit A. This objection is based upon C. S. §§ 5991 and 7980, which read respectively as follows:

"5991. Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration and But when an instrusubsequent indorsers. hands of a holder in due course, not a party ment has been materially altered and is in the to the alteration, he may enforce payment thereof according to its original tenor."

BUDGE, J. This action was brought to recover upon a promissory note. The complaint alleges that the note in question, a purported copy of which appears in the complaint, was made and executed by appellant on February 14, 1921, and delivered to defendant W. O. Johnson, doing business under the name Changnon & Co. The principal amount of the note was $1,080, which was payable in 12 equal monthly installments of $90 each, the first installment being due and payable "one month after date." It is next alleged that, "before the due date of the first payment of said note," Changnon & Co. indorsed said note to plaintiff, in due course of business and for value, and that no part of the note had been paid, except the first 2 installments. To the complaint a demurrer was filed, but was overruled by the court. Appellant thereupon answered, denying specifically each and every material allegation of respondent's complaint, and alleging that on December 7, 1920, he executed a note similar to the one set forth in the complaint, and, as a part of the same transaction, entered into a conditional sale contract with Changnon & Company for the purchase of a Viele automobile; that on December 7, 1920, Changnon & Co. did not own said Viele automobile nor any interest therein; that the promissory note and conditional sale contract were both tentatively and conditionally signed in connection with a proposed transaction, in which Changnon & Co. were "The conclusion, it seems to us, from all to deliver to appellant a new Oldsmobile the decisions, is, simply this: The party presedan, and upon its delivery the Viele auto-senting an instrument which, upon its face, 'mobile was to be transferred to Changnon & Co., at which time the note and contract were to be delivered to that company; that the Oldsmobile sedan was never delivered, the proposed transaction was never consummated, and appellant received no consideration for the conditional sale contract and

"7980. The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. He another without his concurrence, or was made may show that the alteration was made by with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he do that he may give the writing in evidence, but not otherwise."

The last-quoted statute (C. S. § 7980) was construed by this court in the case of Mulkey v. Long, 5 Idaho, 213, 216, 47 P. 949, 950,

where it was said:

shows that it has been altered, is required to explain such alteration, or at least show that it has not been altered since it came to his hands. The parties who made or executed the instrument may have made or assented to the alteration before its execution, and yet the holder be entirely unable to prove that fact. We think, therefore, that the exigency of the

statute is complied with when the party presenting the instrument in evidence has shown that there has been no alteration therein since it came to his hands. Galland v. Jackman, 26 Cal. 85, 85 Am. Dec. 172; Sedgwick v. Sedgwick, 56 Cal. 213."

Testimony was introduced by respondent in this case that, when the note was forwarded to it, it was in exactly the same condition as when request was made that it be admitted in evidence, and, in accordance with the rule laid down in Mulkey v. Long, supra, the court did not err in permitting it to be introduced in evidence.

Having determined that the note was properly admitted in evidence, we come now to the serious question involved in this case, which is as to whether or not the respondent was a holder in due course. If respondent was a holder in due course and not a party to the alteration, he could enforce payment thereof according to the original tenor of the note. If respondent was not a holder in due course, the instrument would be avoided. C. S. § 5991. C. S. § 5919, provides that: "A holder in due course is a holder who has taken the instrument under the following con

ditions:

"(1) That the instrument is complete and regular upon its face.

"(2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact.

"(3) That he took it in good faith and for value.

"(4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it."

(2)

An examination of the note admitted in evidence discloses the fact that the same is not complete and regular upon its face. Four irregularities appearing upon its face point to this conclusion: (1) Attention is first called to the date of the note, which appears as "February 14, 1921." It is apparent that an erasure and change has been made. The figures "19" are printed. The figure "2" appears in black typewriting. The remainder of the date appears in blue typewriting. All other typewriting on the note has been done with a black typewriter ribbon. An erasure and change has been made in the amount of the note, and part of the original typewriting can still be seen. (3) On the back of the note are six two-cent internal revenue stamps, each of which bear the following cancellation in ink: "12/7/20 GWT." There is also a ten-cent revenue stamp on the back of the note, which bears the following cancellation, “2/7/21,” and initials, which are not legible, the ink used in canceling the ten-cent stamp being different from that used in canceling the two-cent stamps. A com parison of the initials upon the two-cent

ty that would indicate that all were written by the same person. It is to be noted that the dates on which the stamps were canceled, to wit, "12/7/20" and "2/7/21" are prior to the date upon which the note was executed, as it now appears, to wit, "February 14, 1921." (4) Over the date and amount of the note are written the initials "GWT." A comparison of this writing with the signature on the note would indicate that they were not written by the same person, and a comparison with the initials "GWT," by which the two-cent stamps were canceled, fails to disclose the slightest resemblance in handwriting.

[1] Upon the trial appellant testified that the note, when he signed it, bore the date of December 7, 1920, and that it was not changed by him; that he did not change the amount; that he did not write the initials "GWT" over the date and the amount; that he did not authorize the changes made on the note; and that the same were made without his consent or knowledge; that he canceled the two-cent stamps on the back of the note on December 7, 1920; and that the initials thereon were in his handwriting. No evidence was offered by respondent to contradict or deny this testimony, or to explain or overcome the irregularities appearing upon the face of the instrument. C. S. § 5992, provides, inter alia that:

"Any alteration which changes: "(1) The date.

"(2) The sum payable, either for principal or interest. of payment,

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"(3) The time

or any other change or addition which alters the effect of the instrument in any respect, is a material alteration."

[2] There is sufficient competent evidence to show that a change was made in the date. The change in the date altered the time of payment. If the note was dated February 14, 1921, the first installment, being due "one month after date," would become due March 14, 1921. If the note was dated December 7, 1920, the first installment would become due January 7, 1921, in which event the respondent did not purchase the note before maturity, and it was not a holder in due course, for the reason that the only testimony was to the effect that respondent purchased the note on or about February 14, 1921. The rule would seem to be that, if an installment of a note is overdue at the time it is transferred, the purchaser takes the whole note as overdue paper, and is not. a holder in due course. Hall v. E. W. Wells & Son, 24 Cal. App. 238, 141 P. 53; Daniels, Negotiable Instruments, vol. 1, § 787; 8 C. J. 410, § 506. In the case of McCorkle v. Miller, 64 Mo. App. 153, 156, it is said:

"The reason of the rule is that, where one

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