Flournoy v. Warden
17 Mo. 435
Mo.
1853
Check Treatment
Scott, Judge,

delivered the opinion of the court.

1. The principle that the identity of the grantor in a deed shall be presumed from proof of the execution of the instru-' ment by one of the same name, is founded on the experience of its correctness and its convenience. Laws are made for cases quae frequentius accidunt, and because they are not adapted to circumstances which may sometimes exist, they are not to give way and let a few exceptions form the rulе. If the presumption of the identity of person from identity of name should be discarded, it is obvious that, in a great many cases, Suitors would be put to unnecessary trouble in proving a fact, which, in most instances, would be as the lаw now presumes it to be.

From the view we take of the subject, we do not see the policy of qualifying the рresumption of identity of person from ‍​​​​‌​‌‌​‌‌​‌‌​​‌​​​​​‌‌‌​​‌​​​​​‌​​​​‌‌‌​​​​​​‌‍identity of name, in the manner which has been contended for by the defendant. The question of identity is one *440for the jury. Our view of the subject is well expressed by Judge Edwards, in the case of Brown v. Kimball, 25 Wend. 271. " The рroof of the execution of the instrument, the suspicious circumstances attending it, and the explanatоry testimony are all proper subjects to be submitted to the jury ; and because the party relying upon the validity of the instrument is not able to introduce explanatory proof, or does not choose to do sо, after making the usual proof, he is not to be deprived of the benefit of the verdict of a jury. He ought to bе permitted to submit his cause without such proof and seek a verdict of the jury as to the validity of the instrument under which he claims, if he chooses to do so. If the rule contended for should prevail, whenever there was a material inter-lineation or erasure in a written instrument, or other circumstances of suspicion, which cоuld not be explained, it would be in the power of the judge, and, in fine, it would be his duty to pronounce such instrument void for want of such proof, and withhold it from the consideration of the jury.” With a patent in his hand and a deed to the plaintiff, in the name of the patentee, if the defendant had demurred to the evidence, would the plaintiff be compelled to join in the demurrer, unless the defendant admitted on record the execution of the deed by the patentee ; that is, whether there were any facts or circumstances given in evidence from which the jury might infer the fact of execution, not that they conclusively must. If there is no proof of the exeсution of a bond, the court will not suffer it to be read in evidence; but if there be any fact or circumstancе, tending to prove the execution, or from which the execution might be presumed, then, like other presumрtive evidence, it is for the decision of the jury ; for, if the bond is withdrawn from the jury, the fact is taken from them, and the court decides, not only on the truth, but on the strength of evidence, and pronounces at once that there shall be no presumption of facts from the proof of other facts. The fact that the name may be thаt of John Smith, may weaken the presumption, and should have its weight; but we are of opinion, that it should *441not overthrow it. If the circumstance that there was another of the same name with the grantor should destroy the ‍​​​​‌​‌‌​‌‌​‌‌​​‌​​​​​‌‌‌​​‌​​​​​‌​​​​‌‌‌​​​​​​‌‍presumption, as a rule of evidence founded on the experience of the truth, its utility would be greatly impaired.

The rule which seems now to be established is, that proof of identity, either of the plaintiff or defendant, with one named in the contract, is never necessary in the first instance. Producing the contract, bearing the same name with the party in the suit, is prima facie sufficient, and throws it upon the other party to produce evidence against the idеntity. 5 Cow. 237. Davis v. Kimball, 19 Wend. 437. This seems to be the doctrine as established ‍​​​​‌​‌‌​‌‌​‌‌​​‌​​​​​‌‌‌​​‌​​​​​‌​​​​‌‌‌​​​​​​‌‍in the United States. Cow. & Hill’s notes, 3 vol. 1301. Judge Cowen remarks, that the case of Roberts v. Wolfe, 1 Dana, 155, is the only American case, it is believed, in which this has been denied. Ib. Although there is some contrariety of opinion in the English books, on this question, and able judges have differed in relation to it, yet it would seem, from one of the late cases, that the law is now established as above stated. Sewall v. Evans, 45 E. C. L. C. 25. We do not understand this last case as maintaining that the name, if that of John Smith, would overthrow the rule, but as weakening ‍​​​​‌​‌‌​‌‌​‌‌​​‌​​​​​‌‌‌​​‌​​​​​‌​​​​‌‌‌​​​​​​‌‍the presumption. The other сircumstance mentioned in that case, length of time since the name was signed, does not exist in that now befоre us. The suit of Brown v. Kimball, 25 Wend. 259, in which it was held that the presumption of identity did not arise from similarity of name, where the deed, on its fаce, excites suspicion of fraud, was decided in the court of errors against the opinion of the chancellor and some able lawyers.

2. When there is any fact or circumstance tending to prove the authenticity of the instrument, from which it might be presumed, then the instrument is to be read to the jury, and the question, like other matters of fact, is for their decision, and when a prima facie case of execution has once been made, the court is not to allow the other party ‍​​​​‌​‌‌​‌‌​‌‌​​‌​​​​​‌‌‌​​‌​​​​​‌​​​​‌‌‌​​​​​​‌‍to produce counter proof before the instrument is read, and then assume *442to take the question from the jury. 3 Cow. & Hill’s notes, 1310. Powell v. Adams, 9 Mo. Rep. 766. As the plaintiff submitted to a non- suit, we cannot undertake to pronounce an opinion as to the sufficiency of the evidence to maintain his action. That power would hardly have been exеrcised had there been a finding by the court.

The other judges concurring, the judgment will be reversed and the cause remanded.