Barry v. Hoffman

Tuck, J., delivered the opinion of this court. It was necessary under the pleadings, for the plaintiffs to show that they were entitled to maintain the sci fa, as assign» ees of the judgment. The first prayer asserts that they were not so entitled unless the jury should find that they had been designated, as trustees for the bank, in the manner therein stated. Several interesting questions were argued under this prayer, but we think one of them presented on the part of the appellees is conclusive against the propriety of granting the instruction.

The first deed of trust provides that the grantees and their assigns shall convey the property and effects of the bank, to such persons as might be thereafter designated, in the manner stated in the prayer, and until such conveyance be made to hold the same for the payment of the debts of the bank, and for the use of the stockholders. &c. The only interest the defendant had in the question, was the risk he might run in paying the debt to a party not entitled to receive the money. If the present plaintiffs were within either of the alternatives mentioned in the deed he was sufficiently protected. If they are not trustees designated in the manner prescribed they are still assignees under the other clause, and as such authorized to collect the assets of the bank, and to use “all and singular the w'ays, means and remedies for the enforcement or recovery thereof,” which the bank had or might be entitled to employ.

The prayer excludes this hypothesis on which the plaintiffs were entitled to sue, provided the deed was delivered, and was therefore properly refused. ⁸⁶ The counsel for the appellees concede the law of the second prayer, if the deed in question was not delivered until February 1842. We are now dealing with an original instrument which takes effect from delivery, and this is to be proved as a fact in the cause, the time of the delivery being the important point in the present case. In Best on Presumptions, 181, 47 Law Lib., 116, it is said to be a general rule, “that prima facie, all documents must be taken to have been made on the day they bear date,” and several examples are given, such as letters, bills of exchange, notes and deeds, with reference to cases of authority. The principle applies in regard to deeds, as well to execution as delivery.

Smith vs. Battens, 1 M. & Rob., 341 . Stone vs. Grubbam, 1 Ro. Rep., 3 pl., 5. Ofley vs. Hicks, Cro.

Jac., 264. In the case before us, the evidence did furnish proof of execution and delivery on the 3rd of March 1841, as matter of inference from the dates, and the parol proof; but the fact of all the evidence having been offered on one side, did not authorise the court to assume that the jury could not find the delivery on another day. Even if the evidence had been free from doubt, in the mind of the court, the question should have been left to the jury. Insurance Co., vs. Corner, 2 Gill, 426. 1 Md. Rep., 451 , Grove vs. Brien.

The record shows some conflict on this point, between the date of the deed and the time of the acknowledgment, and also between some of the witnesses; discrepancies which a jury might perhaps have reconciled, so as to have found the delivery of the deed on the day it actually occurred. We do not deem it proper to discuss this question of fact. We shall merely indicate the portions of evidence applicable to this