103 Ga. 767 | Ga. | 1898
In the case of Hollis v. Stevens, 36 Ga. 463, a -registered deed was put in evidence and read to the jury, and, in the absence of any affidavit of forgery, the opposite party introduced evidence attacking the genuineness of the deed ■; and upon the exception that the court erred in admitting this testimony, because no affidavit of forgery had been filed, this court'ruled that the provisions of the code section above quoted afforded a cumulative remedy, and that a party alleging a deed to be a forgery is not obliged to make the affidavit; that after the deed had been admitted in evidence, he might introduce any competent evidence to impeach it; that if he could successfully attack the deed without making the affidavit, it was his right' to do so. In the case of Sibley v. Haslam, 75 Ga. 490, after citing the case above referred to, it was held that even after the deed, whether ancient or modern, had been read to the
As a general rule, all private writings produced in evidence must be proved to be genuine. 1 Gr. Ev. § 557. Section 5239 of the Civil Code provides that: “Generally, the original writing must be produced and its execution proved.” Even in the case of a registered deed, where an affidavit of forgery is filed, the party offering the deed is not then assisted by the registration thereof, but the burden of proving the same genuine rests upon him. DeVaughn v. McLeroy, 82 Ga. 687, citing Hanks v. Phillips, 39 Ga. 550; Mills v. May, 42 Ga. 687; Hill v. Nisbet, 58 Ga. 586; Holland v. Carter, 79 Ga. 139. It is manifest from these authorities, that the law raises no presumption in favor of the genuineness of a written instrument, but simply leaves the question as a matter of fact to be ultimately found by the jury upon proofs to be adduced by the parties to the cause in which the instrument is offered in evidence. The law presumes nothing whatever until the signature to the instrument is proven genuine. This being done, the law then presumes that the instrument in all its parts is genuine also, when there are no indications to be found upon it to rebut such a presumption. Pullen v. Hutchinson, 12 Shepl. (Me.) 254; Lefferts v. State, 49 N. J. L. 27. If, therefore, the party offering the paper in evidence had introduced sufficient evidence tending to prove its genuineness to cast the burden upon the opposite party, or if by reason of the nature of the latter’s defense the burden of showing the falsity of the paper rested upon him, in either event this burden would be
Judgment reversed.