112 Va. 798 | Va. | 1911
delivered the opinion.
The controversy involved in this appeal is with respect to a bond alleged to have been executed on the 1st day of August, 1908, by James M. Shoemaker, who it appears resided in Russell county, Virginia, was never married and
James M. Shoemaker died intestate at his home in Russell county in September, 1908, but a short time after the date of said bond, and A. D. Shoemaker was duly appointed and qualified as his administrator. Some time after the death of James M. Shoemaker, appellant presented the said bond to said administrator for payment, which was refused, although the bond had been approved and allowed by the commissioner of accounts for Russell county as a debt against the estate of James M. Shoemaker, deceased, but whether payment was refused because of the want of sufficient personal assets of said decedent’s estate to pay it, or for what reason, does not appear and is not material. Payment of the bond having been refused, appellant filed his bill in this cause against the administrator and heirs at law of James M. Shoemaker, deceased, the purpose of which was to enforce its payment out of the personal assets in the administrator’s hands, if sufficient, and if not out of the proceeds of the sale of the real estate owned by James M. Shoemaker at his death.
To the bill the administrator filed a separate answer, some of the other defendants their joint and several answers, and at the same term of the court two of the defendants filed their plea of non est factum, verified by their
There was some evidence brought out by appellees in the conduct of the case upon their cross-examination of witnesses for appellant, tending to show that there was no consideration for the execution of the bond in controversy, but it is conceded here that the plea of non est factum presents the only defense, relied upon by appellees. The question, therefore, presented on this appeal is whether or not the appellant has successfully carried the burden cast upon him by the plea of non est factum, of proving the genuineness of the signature of James M. Shoemaker to the disputed bond.
We shall not go into a discussion of the evidence, further than to say that it involves not only the credibility of witnessés, but the charge of both forgery and perjury on the part of some of the witnesses who have testified in the case; and the proof is not, in our opinion, sufficiently definite and certain to satisfy us that the ends of justice have been attained by the decree complained of. With the strong circumstances, both favorable and adverse to the genuineness of the bond, appearing from the depositions taken and considered at the hearing of the case, it is one peculiarly for a jury, and the error of the court was in not ordering of its own motion an issue out of chancery. Wherefore, in order that the subject may be more fully investigated, the decree of the circuit court will be reversed and the cause remanded with directions that a jury be impaneled to try
Reversed.