57 Md. 510 | Md. | 1882
delivered the opinion of the Court.
This is a bill by a married woman to set aside a paper, purporting to he a m,arria,ge contract, which she alleges was never signed or executed by her.
The original paper appears to have been lost, how, or in what manner, the record does not disclose. A certified copy, however, signed by the complainant, and acknowledged before a justice of the peace, and duly recorded, is filed with the hill. Being a copy of a paper required by law to he recorded, it is prima, facie evidence of the genuineness of the instrument; and the burden of proof is upon the complainant to show it is not her act and deed. Crawford vs. State, 6 H. & J., 234; Barry vs. Hoffman, 6 Md., 78; Warner vs. Hardy, 6 Md., 537; Hutchins vs. Dixon, 11 Md., 41.
The proof in this respect, rests mainly upon her own testimony, and as this is a civil proceeding, she is, under the Evidence Act of 1864, ch. 109, and its supplements, a competent witness. Turpin vs. State, 55 Md., 462.
Coming then to the proof, it appears that the complainant first became acquainted with the defendant, sometime
The marriage contract now assailed, was executed in December, 1861, and recites, that in consideration of a marriage intended to be had and solemnized between the parties, they each agree to renounce all marital rights in the property of the other.
This instrument, the complainant alleges, she never signed, and never knew of its existence, until 1810, when it was found, according to her testimony, in the following manner:
“ After we moved into town in the fall, into the house where we now live, Mr. Classen changed his desks one day, he laid his papers upon the table; he told me to put the papers away into the other desk, when I found this marriage contract, and I saw my name was upon it." Annoyed and worried, she says, at finding such a paper, which she had not signed, she communicated the fact to her husband, and this gave rise to an angry dispute, the particulars of which it is unnecessary to state.
She then took the paper to Mr. Reynolds, a lawyer, and what passed between them, being a privileged communi■cation between client and counsel, does not appear ; Mr. Reynolds however, does say, the first time he ever heard that the paper had not been signed by her, was after the institution of this suit, and this was nine years after she had consulted him about it. Now, if her signature
It thus appears, that the existence of this marriage contract was known to the complainant as far hack as 1870 : that upon its discovery site had taken it to a competent lawyer, in order that her rights as a wife might be protected, without even intimating to him, that the signature to it was not her genuine signature ; that shortly afterwards, she joins in the execution of a deed, in which the execution of the contract is recited; and that from that time until the institution of this suit, a period of nine years, no steps are taken by her to assail it. Her whole conduct from the beginning to the end seems to us, to he inconsistent with the improbable story she now tells.
As to the evidence of the justice of the peace, it does not strike us as being entitled to much weight one way or the other. The paper was acknowledged in 1867, and he is not examined as a witness until 1880, thirteen years
In the argument at bar,-much stress was laid upon the failure on the part of the defendant to produce the original contract; and had it been traced to his exclusive possession, his failure to produce it, or to have accounted satisfactorily for its loss, would have" been a very suspicious circumstance. But it was kept in a place to which the complainant and others had access, and where in fact she found it. What became of it afterwards does not appear. The defendant says he missed it, and upon inquiry, the complainant told him his son “Ben” had been there, and may perhaps have taken it. In view of these facts, we have not attached much significance to the failure of the defendant to produce it.
As we have said before, the complainant’s case rests mainly on her own evidence, in every material part of which she is flatly contradicted by the defendant. All the facts and circumstance's which led to .the execution of the paper and its acknowledgment before the justice of the peace, and the motives which governed him in the execution of the deed of December 30th, providing for her support, are fully stated by him. There is no reason, so far as this record discloses, why his testimony should not he entitled to as much credit as that of the complainant. And this too, independent altogether of the evidence offered by him to support his character for truth and veracity, in regard to the admissibility of which we are not to he understood as expressing any opinion.
Eor these reasons the decree below will he affirmed.
Decree affirmed.