Barry v. Hoffman , 6 Md. 78 ( 1854 )

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.

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 point, from which it was competent for the jury to have found one way or the other, according to value they might place on the testimony. Carlin and Creighton state that this deed was executed by all the parties, and delivered by the grantor in their presence. Taylor, one of the parties to the deeds, testifies that he was not present, when the others executed them; and that no person was present when he executed them, except the justices before whom they were acknowledged, and that it was then in the custody of P. E. Hoffman, who, as he afterwards states, was an officer of the bank. According to the import of the justices’ certificate of acknowedgment, it would seem to have been acknowledged on the 1st of February 1842. Glenn vs. Grover, 3 Md. Rep., 212. Best on Presumptions, 181. This inference, however, it was competent to rebut, by satisfying the jury from other evidence, that it was delivered on the 3rd of March 1841. The law does not prescribe any mode of delivery. It may be by word or deed. 3 Md. Rep., 79, Stewart vs. Redditt. 6 Gill & Johns., 250. In Budd vs. Brooke, 3 Gill, 221, where the endorsement on a deed was all the evidence offered as to the time it had been admitted to record, it was said that the court below had not erred in refusing to submit that question to the jury, though if countervailing proof had been offered, the jury would have been the proper tribunal for its determination. S'ee also Trasher vs. Everhart, 3 G. & J., 234. This prayer should have been granted. The third prayer having been abandoned we express no opinion upon it. But we think there was error in the court’s refusal to grant thc fourth. The attestation clause under which witnesses sign their names, has not the conclusive effect contended for by the plaintiffs below. We know that deeds are often executed and acknowledged when the grantee is not present, and are retained by the grantor for the purpose of delivery. In Pannell vs. Williams, 8 Gill & Johns., 511, proof of the obligor’s signature, and possession by the plaintiff, the obligee, were held to be prima facie' evidence only; in which case, also, the bond purported to have been signed and sealed by the defendant, and attested by a witness. The attestation clause surely ought not to have more effect in law than direct proof of the execution of the paper, and the possession thereof by the party appearing to be entitled to its possession, who the law presumes to have- come by it honestly, until the contrary is proved.

If the plaintiffs- were relying on a certified copy of a deed regularly recorded — where enrolment is evidence of all circumstances necessary to give it validity — the prima facie proof furnished by the enrolment might be repelled. Craufurd vs. State, 6 H. & J., 231. If we look at the instrument alone for evidence on this question',- the attestation clause arid the date of the deed would indicate the 3rd of March 1841, as the day of its delivery. But on the sanie principle,-the certificate of acknowledgment must be taken to show the time of the acknowledgment. Each furnishes prima facie proof, as to a matter of fact,-which the jury were the proper tribunal to have determined from all the evidence in the cause applicable to that question. Upon this and the second prayer the judgment must be reversed'with a procedendo.

Judgment reversed and procedendo' awarded:*