D re-signed mortgage because he was told there was a mistake with the dates. D did this with J present and J told him he did not have to read it. D really signed a new mortgage
Is the defence of non est factum available to a party who, knowing that a document has legal effect, carelessly fails to read the document thereby permitting a 3rd part to perpetuate fraud on another innocent party?
Non est factum can only be used when there is NOT negligence or carelessness and there has been mistake as to the nature of the documents.
A precondition to use non est factum is that the document they really singed was fundamentally or radically different (This is the test)
Non est factum – I signed it, but I thought I was signing something different.
**The doctrine of non est factum came from Foster v Mackinnon
General rule: the signor in order to deny successfully his signature, has to show that he had not been careless in executing the document (Foster).
When a doc is executed as a result of misrepresentation as to its nature and character and not merely its contents the D was entitled to raise the plea of non est factum (Carlisle v Bragg).
D is barred by reasons of their carelessness from pleading that their minds did not follow their hands when executing the mortgage so as to be able to plead that the mortgage is non-binding