Edelin v. Sanders

| Md. | Dec 15, 1855

Le Grand, C. J.,

delivered the opinion of this court.

This was an action of debt, brought by the appellant, in Baltimore county court, against the appellee, as executor, upon an alleged bond of his testator for $2000, dated the 11th of December 1838, and payable on or before the 1st of July 1840. The suit was not brought until more than nine years after the bond became due and payable. On leave of court the defendant pleaded non estfactum without oath.

In this state of the pleadings the plaintiff proved by a witness that the cause of action, with the exception of tire date, name of the payee and the signature of the maker, was in his handwriting; that the signature was in the proper handwriting of the testator of the defendant, but he was unacquainted with that in which the name of the payee was written. He had no recollection whatever of having prepared the paper, and only knew the fact at the time of the trial from his recognition of his handwriting. The plaintiff further proved by the same witness, that about the date of the single bill sued upon, it was agreed between the plaintiff and defendant’s testator, and Mrs. Rebecca Boarman, that the purchase money of certain real estate, sold by said testator for $2000, should be divided between plaintiff and Mrs. Boarman, so as to give her one-third part thereof; that the reason of said agreement was, that the land had been deeded many years before by Benedict L. Boarman to said testator, and the plaintiff claimed that it was so deeded in secret trust for the benefit of the grantor’s wife, and of his only child, the wife of the plaintiff, but said testator denied said trust and declared that he so agreed as an act of generosity, so far as plaintiff’s wife was concerned. The note payable to Mrs. Boarman for $668.66§, bearing date the same day, and in the same form as that sued upon, was also offered in evidence. It was also given in evidence that Benedict L. Boarman was largely indebted at the time of the execution of the deed to the testator; that there was also a bill of sale executed by the said Benedict, (about the same time as his deed for his lands,) to said testator, for certain of Boarman’s negroes. Defendant’s testator denied ail secret trusts both in regard to the land and negroes. The defendant then offered in evidence the records of two suits in Charles county court,- brought by tbe defendant’s testator against the plaintiff. To the admissibility of these records the plaintiff objected, and the reception Of them constitutes bis first bill of exceptions.

The second exception of the plaintiff was to the admission on the part of the defendant of his testator’s will, whereby it appeared that he claimed tbe right to dispose, as of his own, the property alleged by the plaintiff to have been conveyed to him in secret trust.

The third exception applies to the prayers granted and refused both on the part of the plaintiff and defendant.

Before noticing each of the exceptions, we deem it proper to state some of the principles of law, which, in our judgment, must control the decision of this case.

The plea on which issue was joined was that of a general non est factum. Whatever the law may be elsewhere, in Maryland It imposes on the plaintiff the onus of proving both the execution and delivery of the bond. Proof of execution and possession is sufficient evidence, prima facie, of delivery, and in the absence of all proof on the part of the obligor, would entitle the obligee to a verdict. The seal importing a consideration, the latter, as such, cannot be inquired into under this plea; but notwithstanding this, the obligee may give in evidence “ any thing which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, See., or that it has become void subsequent to the execution and before the bringing of the suit, as by erasure, alteration, ’ ’ &c. Union Bank of Md. vs. Ridgely, 1 Har. & Gill, 416.

In the case now before us, the plaintiff, by the witness Stone, proved the execution of the instrument sued upon, and having it in his possession, was entitled to recover on it in this action, unless it could be assailed on some of the grounds to which we have alluded. This we did not understand the counsel for the appellee to question; but they contended, that inasmuch as the paper bore on its face evident marks of erasure and alteration, they were entitled to introduce the testimony admitted in the court below and to which the appellant excepted. Judging from the frame of the prayers and the course of argument of counsel, we infer the cause was tried in the court below on the allegation, that the bill exhibited on its face marks of erasure and alteration; and it was in reference to this hypothesis, doubtless, that the testimony contained in the first and second exceptions was introduced. But unfortunately for the appellee, there is nothing appearing in the record going to show in the slightest particular the instrument had been subjected to any alteration, and therefore, so far as this court is concerned, it would be entirely gratuitous to assume it had undergone any change after its delivery. Whatever may have been the appearance of the paper at the trial, when, no doubt, it was submitted to the inspection of the jury and by them pronounced upon, there clearly is nothing before us to show it was not perfectly fair on its face. We can only decide the case according to the record, and if tire party failed to have it put in a proper form, he must abide the consequences. If, in point of fact, it was obvious on inspection that the paper had been altered, it was easy to have it noticed in the exception, either by an agreement to that effect or by calling to the stand an expert in handwriting, and asking his opinion as to its appearance. Had this been done, and had the witness testified that the paper appeared to have been altered or any portion of it erased, we are of opinion the testimony in the first bill of exceptions, which was excepted to on the part of the plaintiff, would have been admissible as tending to show it had not been delivered in its then state. This evidence, however, it is proper to say. can only be admissible on the supposition, that it tends to show fraud on the part of the appellant, by showing his relations and dealings with the testator of the appellee. A witness on the stand could as readily give his opinion on the subject of alteration or erasure as could a juror in the jury box. We are of opinion, however, that under no state of circumstances was the will of William Sanders competent testimony. To allow it to be given in evidence, would be but to permit a party to testify in his own case and in his own behalf. As the case is presented to us on this record, we must reverse the ruling of the court both on the first and second exceptions.

As to the third exception: We think the court properly rejected the prayer offered on the part of the defendant. So far as this record shows, there is nothing in the case from which the jury could infer the hypothesis of the prayer. There is nothing from which they could infer, either that the single bill was delivered in blank or that it was delivered when payable to some other person than the plaintiff. As we have before stated, we have no judicial knowledge of the suspicious appearance of the paper, if such in fact existed. We are also of opinion, that the court properly rejected the second prayer of the plaintiff. Independently of the question of law involved in it, there was no evidence of which to predicate it. The name of the obligee is a material part of the deed, and delivery in blank is an insufficient delivery unless recognised after the blank is filled. This is the general .principle. There are some exceptions to it, but none of them applicable to a case like the one before us. We also think the court erred in granting the third and fourth prayers of the plaintiff. There was no testimony to support them; nothing to show the single bill was delivered in blank, nor that there had been any erasure of the name of the original obligee and the substitution of that of die plaintiff, with the consent of the testator of die defendant.

We are of opinion, that the first, fifth and sixth prayers of the plaintiff, as offered by his counsel, ought to have been granted. Although there is nothing in the testimony to support the latter part of the first prayer, this circumstance does not vitiate it. It requires the juiy to find all that is essential to the plaintiff’s right of recovery. All that part of the prayer which follows the word unless ” is mere surplusage.

The other three prayers merely assert propositions which are recognized in all the cases, and which we did not understand counsel for the appellee to dispute. Their objection to them rested upon the theory, that they ignored the fact of alteration or erasure after the execution and delivery of the paper. Viewing this case as it is exhibited to us in the record, the qualification of these prayers, as insisted upon by counsel for the appellee, cannot be maintained for the reasons which we have already assigned.

Judgment reversed and procedendo awarded.