Austin v. . Pickler

Smith, C. J.,

(after stating the case). The grounds of exception to the ruling of the Judge brought up for review are stated to be:

1. That there was no evidence that the notes were given for the tract of land in Davie county.

2. That no sufficient reason why the notes might not be collected has been shown.

3. That it does not appear upon the face of the notes that the relators could have no interest in them; and

4. That the relators do not seek to subject the lands in Davie county to sale.

The controversy concentrates upon the single question of the liability of the administrators upon the notes thus produced, and the solution of this inquiry disposes of the appeal.

The notes are carelessly drawn, and evidently the words “to be void at my death” have reference to the death of the obligee, as does the expression “help me cultivate my farm,” as they proceed from the obligee, and are words improperly interjected into the instrument in which the obligor speaks, who alone executes it.

But enough remains to give it a legal character and effect as a penal bond with conditions of avoidance. If the money was furnished the testator as he needed and required, and the stipulated assistance given him in cultivating his farm, then the obligation running through his lifetime became void and inoperative.

Now, upon whom devolves the burden of proving a compliance or non-compliance with the conditions? In our opinion, in analogy to the practice in suits upon bonds strictly penal, the plaintiff being required to assign breaches in the conditions, the validity of the bond should be shown by those seeking to enforce it.

“ In an action on a penal bond, execution not being denied but performance pleaded on oyer and assignment of breach, the onus is with the plaintiff to show the breach.” Bailey Onus Probandi, 272, citing 1 Sel. N. Pri., 485 and 437.

But the case is stronger than if upon a bond strictly penal and defeasable, for the party insisting upon its being in force to charge the administrators should show every fact necessary therefor. Assuming the conditions to have been fulfilled, and there is no proof or suggestion that any complaint of neglect was ever made by the deceased, the bonds became inoperative at his death by their very terms, and the Court, in the absence of any proof qf conditions broken, or of any explanations, properly refused to charge the administrators with them.

The judgment must be affirmed and it is'so ordered.

No error.' Affirmed.