| Ga. | Jun 15, 1869
1. At first sight, this deed appears to be properly admitted to record. It is apparently attested by one witness and a magistrate, as required by law. The attack upon it is based upon the idea that the signature of the- magistrate is either forged or written subsequently to the 'execution. Prima fade, the attestation is sufficient. The presumption of law is that the magistrate signed it in the county and at the time appearing on the face of the deed. Prima, fade, also the signatures are genuine. The deed appearing to be properly attested and admitted to record, the presumptions are in its favor. The burden of attack is upon the party resisting the deed, lsi Kelly, 3, Doe ex dem., Truluck vs. John Peeples.
2. In questions turning upon the proper execration of papers offered in evidence, it is sometimes a nice question, where the duty of the Court ends, and that of the jury begins.
Undoubtedly, the law and the practice is, that, in the first instance, except where there is a plea of non est factum, the evidence of execution is heard and adjudged by the Court. This is, of course, however, only prima faoie, as in all cases the jury must, in making up their verdict, pass upon the question in its totality.
The Court only acts as a sifter of the papers presented, and it is its duty to permit no papers to go to the jury that do not appear to be properly executed. Unless this has been done, they are not relevant. They may have been the acts of other parties, and be mere waste paper as to the matter in issue. Greenleaf’s Ev., 849, 1st vol.
The true rule, we think, upon this subject, is this: The party offering a. paper, must make out a prima fade case, he must show, apparently, that the fact is as he contends. If the evidence wholly fails to show the execution, the Judge ought to reject the deed. It is not worth while to burden the case with such a paper. It is irrelevant. But if there be a reasonable probability established, that the paper is what it purports to be, even though there may be grave
We express no opinion in this case, as to what would have been the duty of the jury had the Judge sent the deed to them. We reverse the judgment of the Court on the ground that he withheld the question from the jury. There was enough for the plaintiff to authorize the Judge to consider the deed matter for the consideration of the jury. For myself, I would say that mere difference in the color of ink is a very small matter. Nothing is more common than two inkstands on the same table, each containing ink of a distinct shade or color, and every chirographer is familiar with the fact that some times the ink at the bottom of a stand, will make upon paper an impression of a different shade from that at the top. Nor is the unexecuted probate on the back of this deed of much moment. Who wrote it ? and when ? It is, indeed, a very strange mode of reasoning to use a writing not signed by any body, and not proven to have been written by any body, to contradict a paper, apparently properly executed in the presence of an officer, appointed by law to witness papers, and whose acts, like other official acts,'are prima fade, at least, presumed to have been rightly done.
Judgment reversed.