Wanita Woolen Mills v. Rollins

75 Miss. 253 | Miss. | 1897

Terral, J.,

delivered the opinion of the court.

This is a bill by Mrs. Rollins against the appellant, a corporation, to foreclose a mortgage executed by its president and secretary, to secure its promissory note for a large sum of money. The complainant, in her bill, waived an answer on oath. A copy of the note was filed with the bill, and also a certified copy of the mortgage. The answer denied the execution of the note and mortgage by the defendant, and all other averments of the bill, but admitted that the president and secretary of said company had executed said mortgage, but without authority. On bill and answer, a decree was entered for Mrs. Rollins, and the appellant insists that the decree should have been in its favor.

We think, in order to put the proof of the execution of the note and mortgage upon the complainant, the answer of the defendant should have been verified by affidavit. Section 1797, annotated code of 1892, provides that ‘ ‘ in suits founded on any written instruments set forth in the pleading, it shall not be necessary to prove the signature or execution thereof, unless the same be specially denied by a plea, verified by the oath of the party pleading the same. ’ ’ If the answer of the defendant had been sworn to, it might have served, equally as a plea, to require proof of the execution of the note and mortgage.

The statute, § 534, annotated code 1892, which authorizes a complainant to waive answer on oath, does not, as we think, affect the requirement of § 1797. Chapter 43 of the code expressly applies to chancery courts (§ 1810), and this, we apprehend, removes all doubt as to the construction of that section.

Mr. Beach says: “ Where statutes authorize the complainant to waive answer under oath, the answer can only be regarded as a pleading.” Beach’s Eq. Pr., sec. 356; Bowerman v. Sybourn, 7 T. R., 3. An answer not sworn to is not evidence. 3 Greenl., sec. 286; Bien v. Weatherspoon, 1 How. (Miss.), 28.

A production of the note and mortgage at the hearing of the case was sufficient evidence to sustain the bill. By statute the certified copy of the mortgage was equivalent to the original unless denied on oath. Upon settled principles of practice, we must presume that the court had before it the no,tes sued on, in the absence of a bill of exceptions certifying otherwise.

In a common law court it is a presumption of law that facts, without the proof of which the verdict could not have been found, were proved at the trial. Broom’s Leg. Max., *946. Decrees in chancery stand upon the same principle. 1 Greenl. Ev., sec. 551. The written contract of a corporation, when apparently signed by its proper officers, when sued on, as similar contracts of individuals in like cases, prove themselves, unless denied on oath. Mr. Beach says that corporations have power to borrow money, make promissory notes, and to secure notes by mortgage, unless restrained by charter, and such instruments, when signed by the proper officers, arq prima facie sufficient evidence of their execution and validity, unless attacked. Pri. Corp., sec. 389. The same doctrine was held in Hamilton v. McLaughlin, 145 Mass., 20. This principle we think just and reasonable. It is in harmony with the principles of law in other cases. It is a maxim of the common law to presume that what has been done was done of right and not of wrong. This maxim applies as well where matters are in contest between private persons as to matters public in their nature. It is an established rule that the law will presume in favor of honesty and against fraud; it goes on the footing of validity, and upholds validity by supposing that everything was present which their validity required. Broom’s Leg. Max., *946, 949.

The action of the court is affirmed at the costs of the appellant.