Classen v. Classen

Robinson, J., delivered the opinion of the Court. This is a bill by a married woman to set aside a paper, purporting to he a m,arria,ge contract, which she alleges was never signed or executed by her. The original paper appears to have been lost, how, or in what manner, the record does not disclose. A certified copy, however, signed by the complainant, and acknowledged before a justice of the peace, and duly recorded, is filed with the hill.

Being a copy of a paper required by law to he recorded, it is prima, facie evidence of the genuineness of the instrument; and the burden of proof is upon the complainant to show it is not her act and deed. Crawford vs. State, 6 H. & J., 234 ; Barry vs. Hoffman, 6 Md., 78 ; Warner vs. Hardy, 6 Md., 537 ; Hutchins vs. Dixon, 11 Md., 41 . The proof in this respect, rests mainly upon her own testimony, and as this is a civil proceeding, she is, under the Evidence Act of 1864, ch. 109, and its supplements, a competent witness. Turpin vs. State, 55 Md., 462 .

Coming then to the proof, it appears that the complainant first became acquainted with the defendant, sometime ⁵¹² in the year 1865. She had been divorced from her former husband, and was then about thirty-four years of age, and he a widower of sixty. Soon after their acquaintance,, she went to live with him, as she says, under a contract of marriage, per verba de prcesenti, a contract, it is but proper to say, unknown to the laws of this State. Be that as it may, they did cohabit together as man and wife, the defendant introducing her to his friends, sometimes as his wife, Mrs. Classen, and at other times, as Mrs. Stonesif'er, her maiden name, until 1810, when they were lawfully married.

The marriage contract now assailed, was executed in December, 1861, and recites, that in consideration of a marriage intended to be had and solemnized between the parties, they each agree to renounce all marital rights in the property of the other. This instrument, the complainant alleges, she never signed, and never knew of its existence, until 1810, when it was found, according to her testimony, in the following manner: “ After we moved into town in the fall, into the house where we now live, Mr. Classen changed his desks one day, he laid his papers upon the table; he told me to put the papers away into the other desk, when I found this marriage contract, and I saw my name was upon it." Annoyed and worried, she says, at finding such a paper, which she had not signed, she communicated the fact to her husband, and this gave rise to an angry dispute, the particulars of which it is unnecessary to state. She then took the paper to Mr. Reynolds, a lawyer, and what passed between them, being a privileged communi■cation between client and counsel, does not appear ; Mr. Reynolds however, does say, the first time he ever heard that the paper had not been signed by her, was after the institution of this suit, and this was nine years after she had consulted him about it. Now, if her signature ⁵¹³ was a forgery, we are at loss to conceive, why a fact so vital to her interests, should have been withheld from the very counsel whose advice she had sought. 8he had consulted him for the solo purpose of protecting her rights as a wife against this fraudulent contract, and if her signature to it was a forgery, it is asking rather too much of one to