Keedy v. Moats

Alvey, C. J., delivered the opinion of the Court. This was an action brought by the appellee on a single bill or bill obligatory against John H. Moats, who died soon thereafter, and the appellant, becoming administrator with the will annexed, was made party defendant. The note or single bill bears date the 24th of February, 1885, and is for $950, payable one day after date. The case was tried upon issues joined upon pleas of non est factum, and that the note was procured by the fraud of the plaintiff. ³²⁷ At the trial it was admitted that the whole of the instrument sued on, except the signature thereto, is in the hand-writing of the plaintiff.

There was.no evidence given to show that any transactions had taken place between the parties that would likely have given rise to an occasion for passing the note from John H. Moats, the testator, to the plaintiff. In other words, the circumstances under Avhich the note was executed by the testator and delivered to the plaintiff remain wholly undisclosed. There was evidence given on the part of the defendant tending to prove that John H. Moats, the testator, was not, at the date of the note, in need of money, and had no occasion for borrowing money, but that he had money to loan ; that he Avas old and in feeble health, being in his 78th year of age Avhen he died in August, 1889 ; that from the beginning of the year 1884 he was unable to attend to business, and that his son Joseph attended to all his business matters for him; that - during the months of January, February, and the early part of March, 1885, he Avas sick and confined to his bed, and that the plaintiff did not visit him during his sickness. The proof on the part of the defendant further tended to show that the plaintiff was poor and without money to loan ; that he was carrying on a very small business, and that he had repeatedly declared, since the date of the note in question, that John H. Moats, the testator, Avas not indebted to him on any note, and when requested to produce the note to the sons of the testatqr, he declined, saying that he did not hold any such note.

There was other evidence of the same nature. At the conclusion of the evidence the Court, at the request of the plaintiff, instructed the jury as follows: 1. “That the possession of the single bill in suit by the plaintiff is prima facie evidence of the sealing and delivery of the same by the deceased to the plaintiff, ³²⁸ provided the jury find that the single bill was subscribed with the signature of the defendant’s testator, in his own proper hand-writing. , 2. “That if the jury should find the execution and delivery of the single bill in suit by the defendant’s testator, then the plaintiff is entitled to recover, notwithstanding the evidence offered by the defendant, tending to show that the deceased was not, in need of money at the time the note was given, and the plaintiff had not the money to lend. 3. “ That it is not competent to the defendant to impeach or question the consideration of the note sued on, and the'only matter for the jury to consider under the pleadings is whether the deceased executed and delivered the note as claimed by the plaintiff; and if the jury find such execution and delivery, the plaintiff is entitled to recover, unless the jury further find that the note sued on was procured by the fraud o.f the plaintiff; aud the jury is further instructed that there is no legally sufficient evidence for the jury in this case from which they may find that the said single bill was procured by the fraud of the plaintiff. ’ ’ It was to the giving of these instructions hy the Court that the defendant excepted; and the question is whether, under the pleadings and evidence, the jury were properly instructed, in accordance with the Avell settled principles of law applicable to such cases. The general issue plea of non est factum, denying as it does the allegation in the declaration that the single bill sued on was the deed of the defendant’s testator, threw the whole burden of proof upon the plaintiff, of the execution of the single bill, including the delivery thereof hy the obligor. Union Bank of Maryland vs. Ridgely, 1 H. & G., 416 .

The execution of the deed, to make it effective, consists of the signing and sealing thereof, followed by the act or ceremony of delivery. ³²⁹ Rut proof of execution and jpossessiora is sufficient evidence, prima facie, of delivery, and in the absence of all proof on the part of the defendant, would entitle the plaintiff to a verdict. Edelin vs. Sanders, Exc’r, 8 Md., 118,