Edelin v. Sanders

Le Grand, C. J., delivered the opinion of this court. This was an action of debt, brought by the appellant, in Baltimore county court, against the appellee, as executor, upon an alleged bond of his testator for $2000, dated the 11th of December 1838, and payable on or before the 1st of July 1840. The suit was not brought until more than nine years after the bond became due and payable. On leave of court the defendant pleaded non estfactum without oath.

In this state of the pleadings the plaintiff proved by a witness that the cause of action, with the exception of tire date, name of the payee and the signature of the maker, was in his handwriting; that the signature was in the proper handwriting of the testator of the defendant, but he was unacquainted with that in which the name of the payee was written. He had no recollection whatever of having prepared the paper, and only knew the fact at the time of the trial from his recognition of his handwriting. The plaintiff further proved by the same ¹²⁹ witness, that about the date of the single bill sued upon, it was agreed between the plaintiff and defendant’s testator, and Mrs. Rebecca Boarman, that the purchase money of certain real estate, sold by said testator for $2000, should be divided between plaintiff and Mrs. Boarman, so as to give her one-third part thereof; that the reason of said agreement was, that the land had been deeded many years before by Benedict L. Boarman to said testator, and the plaintiff claimed that it was so deeded in secret trust for the benefit of the grantor’s wife, and of his only child, the wife of the plaintiff, but said testator denied said trust and declared that he so agreed as an act of generosity, so far as plaintiff’s wife was concerned. The note payable to Mrs. Boarman for $668.66§, bearing date the same day, and in the same form as that sued upon, was also offered in evidence.

It was also given in evidence that Benedict L. Boarman was largely indebted at the time of the execution of the deed to the testator; that there was also a bill of sale executed by the said Benedict, (about the same time as his deed for his lands,) to said testator, for certain of Boarman’s negroes. Defendant’s testator denied ail secret trusts both in regard to the land and negroes. The defendant then offered in evidence the records of two suits in Charles county court,- brought by tbe defendant’s testator against the plaintiff. To the admissibility of these records the plaintiff objected, and the reception Of them constitutes bis first bill of exceptions.

The second exception of the plaintiff was to the admission on the part of the defendant of his testator’s will, whereby it appeared that he claimed tbe right to dispose, as of his own, the property alleged by the plaintiff to have been conveyed to him in secret trust. The third exception applies to the prayers granted and refused both on the part of the plaintiff and defendant. Before noticing each of the exceptions, we deem it proper to state some of the principles of law, which, in our judgment, must control the decision of this case. The plea on which issue was joined was that of a general non est factum.

Whatever the law may be elsewhere, in Maryland It imposes on the plaintiff the onus of proving both ¹³⁰ the execution and delivery of the bond. Proof of execution and possession is sufficient evidence, prima facie, of delivery, and in the absence of all proof on the part of the obligor, would entitle the obligee to a verdict. The seal importing a consideration, the latter, as such, cannot be inquired into under this plea; but notwithstanding this, the obligee may give in evidence “ any thing which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, See., or that it has become void subsequent to the execution and before the bringing of the suit, as by erasure, alteration, ’ ’ &c. Union Bank of Md. vs. Ridgely, 1 Har. & Gill, 416.

In the case now before us, the plaintiff, by the witness Stone, proved the execution of the instrument sued upon, and having it in his possession, was entitled to recover on it in this action, unless it could be assailed on some of the grounds to which we have alluded. This we did not understand the counsel for the appellee to question; but they contended, that inasmuch as the paper bore on its face evident marks of erasure and alteration, they were entitled to introduce the testimony admitted in the court below and to which the appellant excepted. Judging from the frame of the prayers and the course of argument of counsel, we infer