Page images
PDF
EPUB

§ 291. Rebuttal. This presumption, arising from lapse of time, may be repelled by evidence of the defendant's recent admission of the debt or duty; such as the payment of interest, and the like. But an indorsement of part payment, made on the bond by the obligee, is not alone evidence of that fact; the indorsement must be proved to have been made at a time when the presumption of payment could not have arisen, and when, therefore, the indorsement was contrary to the interest of the obligee. This presumption may also be repelled by evidence of other circumstances, such as the plaintiff's absence abroad, and the like, explanatory of his neglect to demand his money.3

§ 291 a. Debt on judgment. In debt on a judgment, it has been held, that satisfaction of the judgment may be proved by parol, even though the payment was of a less sum than the whole amount due, provided it was actually received and accepted in full satisfaction of the judgment. (a) And if the judgment were against the debtor by his family name only, and in the action of debt upon it he is sued by both his Christian and surname, the plaintiff may prove the identity of the person by parol.5 (6)

§ 292. Plea of non est factum. The plea of non est factum, to an

1 1 T. R. 271.

2 See ante, vol. i. $$ 121, 122. See also Roseboom v. Billington, 17 Johns. 182; Rose v. Bryant, 2 Campb. 321. The creditor's indorsement alone is now rendered insufficient, by Stat. 9 Geo. IV. c. 14, and by the statutes of several of the United States. See Massachusetts, Rev. Stat. c. 120, § 17; Maine, Rev. Stat. c. 146, § 23.

3 Newman v. Newman, 1 Stark. 101; Willaume v. Gorges, 1 Campb. 317. See Best on Presumptions, pp. 187–189. The whole subject of Presumptive Evidence has been treated with much ability and clearness by Mr. Best, in his "Treatise on Presumptions of Law and Fact." The lapse of twenty years is now made a bar, by Stat. 3 & 4 W. IV. c. 42. See also Massachusetts, Rev. Stat. c. 120, $ 7; Maine, Rev. Stat. c. 146, § 11.

4 Tarver v. Rankin, 3 Kelley, 210. And see Sewall v. Sparrow, 16 Mass. 24; 9 Johns. 221; 7 Wend. 301.

6 Root v. Fellowes, 6 Cush. 29.

(a) Under a plea of nil debet, to an Spooner v. Warner, 2 Ill. App. 240; Bu. action upon a judgment recovered in chanan v. Port, 5 Ind. 264; Hensley v. another State, payment may be proved; Force, 12 Ark. 756. and a receipt signed by the plaintiff, ac- (b) See also Barry v. Carothers, 6 Rich. knowledging, payment, though it be not 331; Ducommun v. Hysinger, 14 III. 249. under seal, is admissible as prima facie And where a judgment was obtained in evidence of payment. Clark v. Mann, 33 one State against one J. P. M., and an Me. 268. Nil debet cannot be pleaded to action on said judgment was brought in an action on the judgment of a court of another State against one J. P. M., the another State. Indianapolis, &c. R.R. Co. identity of the defendant will be presumed. v. Risley, 50 Ind. 60. A recovery in an Thompson v. Manrow, 1 Cal. 428. When action of debt on a judgment should be in a judgment debt is assignable, any subseform of debt for the amount of the ori. quent assignee may sue on it. Wood 0. ginal judgment and for the amount of Decoster, 66 Me. 542. the interest accrued thereon as damages.

action of debt on bond, puts in issue only the execution of the instrument declared on, and admits every other allegation. Therefore the defendant, under this issue, cannot give in evidence, as a defence, any thing arising under the condition of the bond ;(a) nor can he show that the bond was not taken conformably to the requisitions of a statute. And if the action is against one obligor alone, as jointly and severally bound, the plaintiff cannot, under this plea, give in evidence a joint bond of the defendant and the other person mentioned, though it agrees in date and amount with the bond described in the declaration. So, if the declaration is against one as principal and the other as surety, and the evidence is a bond given by the two as sureties only, it is a variance equally fatal.* (6)

1 Rice v. Thompson, 2 Bailey, 339.
2 Commissioners v. Hanion, 1 Nott & McC. 554.
3 Postmaster-General v. Ridgway, Gilpin, 135.
4 Bean v. Parker, 17 Mass. 605.

(a) The plea of non est factum to an sons bound themselves to pay a sum of action of debt on a note puts in issue only money, and which purported to be under the execution of the note; fraud, covin, or their hands and seals, was signed by one of illegality of consideration, cannot be proved the parties without a seal, and it was held, under it. Chambers v. Games, 2 Greene upon demurrer, that one action of debt (Iowa), 320.

might be brought against all the parties. (b) An instrument by which three per- Rankin v. Roler, 8 Gratt. (Va.) 63.

DEED.

§ 293. Proof under plea of non est factum. When a deed or specialty is the foundation of the action, whether it be an action of covenant or of debt, and the defendant would deny the genuineness or legal formality of execution of the instrument, this fact is put in issue by the plea of non est factum. Under this plea, the plaintiff need not prove the other averments in his declaration.

§ 294. Burden of proof. The burden of proof of the formal execution of a deed, whether it is put in issue by a special plea, or is properly controverted under any other issue, is upon the party claiming under it. This proof consists in producing the deed, removing any suspicions arising from alterations made in it, and showing that it was signed, sealed, and delivered by the obligor; and where any particular formalities are required by statute, as essential to its validity, such as a stamp, or the like, the party must show that these have been complied with.

§ 295. Signing and sealing. The subject of the production of deeds, and of the nature and effect of alterations in them, has been treated in the preceding volume. The cases in which the evidence of the subscribing witnesses is dispensed with have also been considered. In the proof of signing and sealing, it is not necessary that the witnesses should have seen this actually done; it is sufficient if the party showed it to them as his hand and seal, and requested them to subscribe the instrument as witnesses. So, where the witness was requested to be present at the execution of the writings, and saw the money paid, and proved the handwriting of the obligor, but did not see him sign, seal, or deliver the instrument, this was held sufficient proof to admit the instru

1 Chitty on Pl. 424, 428; Kane v. Sanger, 14 Johns. 89; Gardiner v. Gardiner, 10 Johns. 47; People v. Rowland, 5 Barb. S. C. 449. As to the proof of a lost deed, see ante, vol. i. $ 558, n.

2 Ante, vol. i. $$ 144, 559-563, 564-568.

3 Ante, vol. i. $8 569–575. As to the proof of the formal execution of deeds, see 4 Cruise's Dig. tit. 32, c. 2 (Greenleaf's n.) (2d ed. 1856).

4 Munns v. Dupont, 3 Wash. 42; Ledgard v. Thompson, 11 M. & W. 41; infra, tit. Wills, $ 676.

ment to go to the jury. If the attesting witness has no recollection of the facts, but recognizes his own signature as genuine, and from this and other circumstances, which he states to the jury, has no doubt that he witnessed the execution of the instrument, this also, uncontradicted, has been held sufficient. And if the witness recollects seeing the signature only, but the attestation clause is in the usual form, the jury will be advised, in the absence of controlling circumstances, also to find the sealing and delivery.3 Indeed, if there is any evidence, however slight, tending to prove the formal execution of the instrument, it is held sufficient to entitle it to go to the jury. If the signature of the obligor's name is made by a stranger, in his presence and at his request, it is a sufficient signing. • (a)

§ 296. Sealing. In regard to sealing, where there are several obligors or grantors, it is sufficient if there be several impressions, though there be but one piece of wax. (6) And in the sale of

1 Lesher v. Levan, 2 Dall. 96.

2 Pigott v. Holloway, 1 Binn. 436. See also Dewey v. Dewey, 1 Met. 349; Quimby v. Buzzell, 4 Shepl. 470; New Haven Co. Bank v. Mitchell, 15 Conn. 206; ante, vol. i. § 572; Pearson v. Wightman, 1 Const. Rep. 344; Denn v. Mason, 1 Coxe, 10; Currie 0. Donald, 2 Wash. 58; Russell v. Coffin, 8 Pick. 143.

Burling r. Paterson, 9 C. & P. 570; Curtis v. Hall, 1 South. 148; Long v. Ramsay, 1 S. & R. 72.

Berks. Turnp. Co. v. Myers, 6 S. & R. 12; Sigfried v. Levan, Id. 308; Scott v. Galloway, 11 S. & R. 347; Churchill v. Speight, 2 Hayw. 338. In New Hampshire (Rev. St. c. 130, § 3); Connecticut (Rev. St. 1838, p. 390; Coit v. Starkweather, 8 Conn. 293); Ohio, (3 Ohio, 89; Walk. Introd. 354); Vermont (Rev. St. 1839, c. 60, $_4); Georgia (Prince's Dig. p. 160, § 6); Florida (Thomps. Dig. p. 177); Michigan (Rev. St. 1846, c. 65, § 8); and Arkansas (Rev. St. 1837, c. 81, § 12); two witnesses are required to the validity of a deed of conveyance of lands. In Indiana (Rev. St. 1838, c. 44, § 7); New Jersey (Elmer's Dig. p. 83, $ 12); Illinois (Rev. St. 1833, p. 131, § 9), and in Alabama (Aikin's Dig. p. 88), the deed must be either acknowledged before a magistrate, or be proved by one or more of the attesting witnesses, before it is admissible in evidence. But in the latter State, the statute is not considered as excluding the proof by evidence aliunde. Robertson v. Kennedy, 1 Stew. 245. See further as to witnesses, 4 Cruise's Dig. tit. 32, c. 2, § 77 n. (Greenl. ed.) (2d ed. 1856). Whether a deed, invalid to pass the estate, for want of witnesses, can be read to support an action of covenant, on proof of its execution at common law, quære; and see French v. French, 3 N. H. 234; Pritchard v. Brown, 4 N. H. 397; Merwin v. Camp, 3 Conn. 35, 41.

s Rex v. Longnor, 1 Nev. & Mann. 576. So the party's mark is a sufficient signature. Pearcy v. Dicker, 13 Jur. 997; Pierce v. Hakes, 23 Penn. St. (11 Harris) 231.

6 Perk. 8°134. It has also been held, that many obligors may adopt one seal. Hol

8

(a) Lovejoy v. Richardson, 68 Me. 386; Lewis, 53 Iowa, 101; Savannah, &c. R.R. McMurtry v. Brown, 6 Neb. 368; Mutual Co. v. Lancaster, 62 Ala. 555; Moore v. Benefit Life Ins. Co. v. Brown, 30 N. J. Willamette Transportation &c. Co., 7 Or. Eq. 193; Pierce v. Hakes, 23 Pa. St. 231. 359. When a deed, purporting to be executed (6) And a seal by a wafer or other tenaby a corporation, bears the corporate seal cious substance, upon which an impression and the signature of the President duly is or may be made, is a valid seal to a deed. proved, it is a good execution of the deed Tasker v. Bartlett, 5 Cush. (Mass.) 359. by the corporation. Murphy v. Welch, So a piece of paper, gummed to the deed 128 Mass. 489; Chicago, &c. R. R. Co. v. and stamped. Gillespie v. Brooks, 2 Redf.

lands by a committee of a corporation, it is sufficient if the deed have but one seal, if it be signed by all the members of the committee. If the deed bears on its face a declaration that it was signed and sealed, and there is a seal upon it, proof of the signature is evidence to be left to a jury that the party sealed and delivered it, even though the witness does not recollect whether or not it had a seal at the time of attestation.2 (a) And if the party, on being inquired of, acknowledge his signature without objection, this also is sufficient, though it were signed without his authority.

§ 297. Delivery. The delivery of a deed is complete when the grantor or obligor has parted with his dominion over it, with intent that it shall pass to the grantee or obligee, provided the latter assents to it, either by himself or his agent. It follows, therefore, that no form of words is necessary if the act is done; and that the delivery may be complete without the presence of the other party, or any knowledge of the fact by him at the time, if it be made to

lis v. Pond, 7 Humph. 222. See, as to seals, 4 Cruise's Dig. tit. 32, c. 2, § 54, n. (Greenl. ed.) (2d ed. 1856). In Kentucky, obligatory writings without seal are placed on the footing of specialties, by Stat. 1812, c. 375, $ 8; Hughes v. Parks, 4 Bibb, 60; Handley v. Rankin, 4 Monr. 556.

1 Decker v. Freeman, 3 Greenl. 338. So, if a bond be executed by a private agent of several obligors, one seal is sufficient. Martin v. Dortch, 1 Stew. 479.

2 Talbot v. Hodson, 7 Taunt. 251; 8. c. 2 Marsh. 527; Ball v. Taylor, 1 C. & P. 417. In some modern cases it is held, that proof of the signature alone is sufficient proof of the seal, though there be no mention of the seal in the body of the instru. ment. Merritt v. Cornell, 5 N. Y. Leg. Obs. p. 300; Taylor v. Glaser, 2 S. & R. 504; Sicard v. Davis, 6 Pet. 137; Lesher v. Levan, 2 Dall. 96.

3 Byers v. McClanahan, 6 Gill & J. 250.

4 Hill v. Scales, 7 Yerg. 410. In several of the American States, south of New York, a scroll, made with a pen, denoting the place of a seal, is held a sufficient seal. ing. 4 Kent. Comm. 453; M’Dill v. M’Dill, 1 Dall. 63; Long v. Ramsay, 1 S. & R. 72; Taylor v. Glaser, 2 S. & R. 504. But in some States it is necessary that the instru. ment should in such cases contain some expression showing an intent to give it the effect of a sealed instrument. Baird v. Blaigrove, 1 Wash. 170; Austen v. Whitlock, 1 Munf. 487; Anderson v. Bullock, 4 Munf. 442, (b) or, at least, that the obligor acknowledged it as his seal, United States v. Coffin, Bee, 140. In New Jersey, the scroll is restricted to money bonds. Hopewell v. Amwell, 1 Halst. 169. See also Newbold v. Lamb, 2 South. 449. But it seems that such an instrument, in States where the common-law rule prevails, would still be regarded only as a simple contract. Adam v. Kerr, 1 B. & P. 360; Warren v. Lynch, 5 Johns. 239.

(N. Y.) 349. But a mere printing on the Cir. Ct. 601, such a declaration was conpaper of the deed has been held not a seal sidered enough. in New York. Richard v. Boller, 6 Daly (6) Wilson v. McEwan, 7 Or. 87; Bur. (N. Y.), 460.

ton v. Le Roy, 5 Sawyer C. Ct. 510. But (a) In McCarley v. Tippah County, 58 in this case it was held that the intent Miss. 483, 749, it is said that an instru- might be inferred from the circumstances ment will be considered sealed where the of the case and the instrument itself. intent to affix a seal is clear, but that a When a scroll is considered a seal, the recital in the deed that it is sealed is not word "seal" written in place of a seal is enough.

equally good. Lewis v. Overby, 28 Gratt. But in Le Frave v. Richmond, 5 Sawyer (Va.) 127.

« PreviousContinue »