18 Iowa 246 | Iowa | 1865
We do not understand that the answer denies .the execution of the deed in such a sense as to require independent proof of its execution. The answer denies that, for a valuable consideration, Stevens conveyed to the plaintiff. Other portions of the answer impliedly admit the existence of the deed. The signature was not denied. Being duly acknowledged, its due execution not being denied under oath, it was properly admitted to be read in evidence, without further proof. Rev., §§ 4001, 2967; and see Manning & Caldwell v. Perkins, 16 Iowa, 71.
This was all the testimony offered in the cause. The defendant now makes the point, that while the deed of
The weight of authority, and the better reasoning, we think, are with the plaintiff, the more especially where, as in this instance (and further we are not called upon to decide), there is no proof that the attachment or execution plaintiff was a creditor at the date when the prior conveyance purports to have been made and acknowledged. (De Bosse v. Young, 14 Ala., 189; Falkner v. Leith, 15 Id., 9; Hundley v. Buckner, 6 Sin. & Mar., 70; Brown v. Bartee, 10 Id., 268, denying McCain v. Wood, 4 Ala., where a different result was reached.)
Mr. Best, in his Treatise on Presumptions, in considering “ Presumptions drawn from the habits of society,” says: “It may be stated, as a general rule, th^it, prima facie, all documents must be taken to have been made on the day they bear date. * * * So a deed is presumed to have been executed (Anderson v. Weston, 6 Bing. N. C., 296) and delivered on the day it is dated,” citing Stone v. Grebbum, 1 Ro. R., 3, pl. 5; Offley v. Hicks, Cro. Jac., 264; Best on Pr., § 133, p. 181 (Eng. ed.). It will be seen by the authorities cited below, that this rule is generally recognized in this country. In the case at bar, Savery the grantee being in possession of the deed duly acknowledged, this
So a similar prima facie presumption of delivery arises from the fact that a deed duly made and acknowledged has been recorded. (Elsie v. Metcalf, 1 Denio, 323; 31 Barb., 155; Haines v. Norton, 16 Id., 264; Boardman v. Dean, 34 Penn., 252; Bullitt v. Taylor, 34 Miss. (5 George), 708; 37 Id., 492; Balbec v. Donaldson, 2 Grant’s Cas. (Pa.), 459; Ingraham v. Grigg, 13 S. & M., 22; Rowell v. Hayden, 40 Maine, 582; Mitchell v. Ryan, 3 Ohio St., 377, and cases there cited, and those supra.)
For the reason assigned by Mr. Best, supra, and for the. further reason, that the acts of persons are presumed to be consistent with truth, in the absence of motives to falsify, and for the kindred reason, that fraud is not to be presumed, the presumption of law is, there being nothing in the particular case to repel or rebut it, that a deed was not only executed but delivered at its date, and upon the consideration recited therein, and this applies as against creditors coming in or claiming under the grantor, certainly as against persons not shown to be creditors of the grantor at the time of the deed. This presumption has been applied in a great variety of cases. (De Bosse v. Young, 14 Ala., 139; Hundley v. Buckner, 6 Sm. & Mar., 70; (10 Ed., 268); Ford v. Gregory, 10 Ben Mon., 175; McConnell v. Brown, Litt. Sel. Cas. (Ky.), 454. On one point, compare last two cases with Henderson v. Major, 8 Md. Rep., 352; Barry v. Hoffman, 6 Md. Rep.,
Affirmed.