CHAPTER XI.

PRESUMPTIONS AS TO DOCUMENTS.

ARTICLE 85.

PRESUMPTION AS TO DATE OF A DOCUMENT.

WHEN any document bearing a date has been proved, it is presumed to have been made on the day on which it bears date,' and if more documents than one bear date on the same day, they are presumed to have been executed in the order necessary to effect the object for which they were executed, but independent proof of the correctness of the date will be required if the circumstances are such that collusion as to the date might be practised, and would, if practised, injure any person, or defeat the objects of any law."

Illustrations.

(a) An instrument admitting a debt, and dated before the act of bankruptcy, is produced by a bankrupt's assignees, to prove the petitioning

[Gr. Ev. i. § 40, n. ; Wh. Ev. ii. § 977; Livingston v. Arnoux, 56 N. Y. 507, 519; Smith v. Porter, 10 Gray, 66; Pringle v. Pringle, 59 Pa. St. 281; so a deed is presumed to have been delivered on the day of its date (People v. Snyder, 41 N. Y. 397); but this is not true of forged instruments; Remington Co. v. O'Dougherty, 81 N. Y. 474. The presumption as to all instruments may be rebutted by proof of the real date of execution. Parke v. Neeley, 90 Pa. St. 52; Germania Bank v. Distler, 67 Barb. 333, 64 N. Y. 642; Smith v. Shoemaker, 17 Wall. 63.]

2 [Jones v. Phelps, 2 Barb. Ch. 400; see Gilman v. Moody, 43 N. H. 239; so it is a general principle that two instruments of the same date, between the same parties, and relating to the same subject matter, form parts of the same agreement or transaction. Mott v. Richtmyer, 57 N. Y. 49, 65.]

31 Ph. Ev. 482-3; T. E. s. 137; Best, s. 403; [see Philpot v. Gruninger, 14 Wall. 570.]

creditor's debt. Further evidence of the date of the transaction is required in order to guard against collusion between the assignees and the bankrupt, to the prejudice of creditors whose claims date from the interval between the act of bankruptcy and the adjudication.1

(b) In a petition for damages on the ground of adultery letters are produced between the husband and wife, dated before the alleged adultery, and showing that they were then on affectionate terms. Further evidence of the date is required to prevent collusion to the prejudice of the person petitioned against.2

ARTICLE 86.

PRESUMPTION AS TO STAMP OF A DOCUMENT.3

When any document is not produced after due notice to produce, and after being called for, it is presumed to have been duly stamped, unless it be shown to have remained unstamped for some time after its execution."

ARTICLE 87.

PRESUMPTION AS TO SEALING AND DELIVERY OF deeds.

When any document purporting to be and stamped as a deed, appears or is proved to be or to have been signed and

1 Anderson v. Weston, 6 Bing. N. C. 302; Sinclair v. Baggallay, 4 M. & W. 318.

2 Houlston v. Smith, 2 C. & P. 24; [Gr. Ev. i. § 102, ii. § 57; see Art. Illustration (k), ante.]

II,

3

[The general abolition in this country of the laws requiring the use of stamps upon written instruments renders this article of little or no importance here. Some analogous decisions of interest under the former law requiring revenue stamps are Van Rensellaer v. Vickery, 3 Lans. 57 ; Long v. Spencer, 78 Pa. St. 303; for a case in which stamps were used as seals, see Van Bokkelen v. Taylor, 62 N. Y. 105.]

4 Closmadeuc v. Carrel, 18 C. B. 44. In this case the growth of the rule is traced, and other cases are referred to, in the judgment of Cresswell, J. 5 Marine Investment Co. v. Haviside, L. R. 5 E. & I. App. 624.

duly attested, it is presumed to have been sealed and delivered, although no impression of a seal appears thereon.1

'Hall v. Bainbridge, 12 Q. B. 699-710. Re Sandilands, L. R. 6 C. P. 411. [These cases, so far as they support this article, are based upon the English rule, that neither an impression upon wax or other tenacious substance, nor a scroll or other mark, is necessary to constitute a seal. But in this country the general rule is that no deed or other specialty is complete without a seal in one or the other of these forms. If, therefore, an instrument has no seal upon it, in the form recognized as valid in the particular State, the fact that it purports to be sealed, and is attested as such, is not sufficient to make it a deed. Chilton v. People, 66 Ill. 501; State v. Humbird, 54 Md. 327; State v. Thompson, 49 Mo. 188; Taylor v. Glaser, 2 S. & R. 431; Corlies v. Van Note, 16 N. J. L. 324. But where a deed is proved by the public records, and no seal has been recorded, like circumstances as to the purport of the deed, etc., will raise the presumption of a seal upon the original. Flowery Co. v. Bonanza Co., 16 Nev. 302; Starkweather v. Martin, 28 Mich. 471; cf. Geary v. Kansas, 61 Mo. 378; contra, Switzer v. Knapps, 10 Ia. 72. If a seal is omitted by mistake, equity will cause the omission to be supplied or will disregard it. Harding v. Jewell, 73 Me. 426; Montville v. Haughton, 7 Ct. 543; Rutland v. Paige, 24 Vt. 181.

If an instrument, when given in evidence, bears a seal, this is presumed to be the seal of the party signing (Mill Dam Co. v. Hovey, 21 Pick. 417, 428; Trustees v. McKechnie, 90 N. Y. 618); and upon proof of the signature, it may be prcsumed that the instrument was regularly sealed and delivered, especially if there be a recital stating the fact of sealing; such recital is, however, by the weight of authority, held unnecessary. Merritt v. Cornell, 1 E. D. Sm. 335 ; Miller v. Binder, 28 Pa. St. 489; Bradford v. Randall, 5 Pick. 496; Trasker v. Everhart, 3 G. & J. 234; Force v. Craig, 7 N. J. L. 272; Anthony v. Harrison, 14 Hun, 200, 74 N. Y. 613; but see Clegg v. Lemessurier, 15 Gratt. 108. But the presumption is rebuttable. Koehler v. Black River Co., 2 Black, 715. Still the fact that an instrument bears a seal and also purports to be sealed is evidence for the jury that it was sealed when signed, though the obligor denies this. Brolley v. Lapham, 13 Gray, 294; State v. Peck, 53 Me. 284, 286.

So when a deed with the regular evidence of its execution upon its face is found in the hands of the grantee, it is presumed to have been duly delivered (Ward v. Lewis, 4 Pick. 518; Story v. Bishop, 4 E. D. Sm. 423); so if it is upon record duly acknowledged and attested. Lawrence v.

ARTICLE 88.

PRESUMPTION AS TO DOCUMENTS THIRTY YEARS OLD.

Where any document purporting or proved to be thirty years old is produced from any custody which the judge in the particular case considers proper, it is presumed that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested, by the persons by whom it purports to be executed and attested ;' and the attestation or execution need not be proved, even if the attesting witness is alive and in court.2

Farley, 24 Hun, 293; McCurdy's Appeal, 65 Pa. St. 290.

But this pre

sumption is also rebuttable. Knolls v. Bambart, 71 N. Y. 474; see Washb. R. P. iii. 292 (4th ed).]

12 Ph. Ev. 245-8; Starkie, 521-6; T. E. s. 74 and ss. 593-601; Best,`s. 220. [Wh. Ev. i. §§ 194-199, 703, 732; Gr. Ev. i. §§ 21, 142-144, 570; Winn v. Paterson, 9 Pet. 663; Cahill v. Palmer, 45 N. Y. 478; Scharff v. Keener, 64 Pa. St. 376; Berry v. Raddin, 11 Allen, 579; Goodwin v. Jack, 62 Me. 414. The age of a will under this rule is reckoned from the testator's death. Staring v. Bowen, 6 Barb. 109. It has been a mooted question, whether, if the document were a conveyance of land, it would be necessary to prove, besides its age and its production from the proper custody, that there had been possession of the land under it and in accordance with its terms. The better opinion is that evidence of possession is not strictly necessary, but other corroborative evidence may be received to establish the genuineness of the instrument. Whitman v. Heneberry, 73 Ill. 109; Walker v. Walker, 67 Pa. St. 185; see Boston v. Richardson, 105 Mass. 351; Clark v. Owens, 18 N. Y. 434; Enders v. Steenbergh, 2 Abb. Dec. 31; see Gr. Ev. i. § 144, n. But evidence of possession is the best means of corroboration, and should be produced when practicable. Willson v. Betts, 4 Den. 202. Unless there be some satisfactory corroboration, the execution of the document must be proved; its age alone is not enough to authenticate it. Jackson v. Luquere, 5 Cow. 221;

Martin v. Rector, 24 Hun, 27.]

2 [Jackson v. Christman, 4 Wend. 277; McReynolds v. Longenberger, 57 Pa. St. 13.]

Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.1

ARTICLE 89.

PRESUMPTION AS TO ALTERATIONS.

No person producing any document which upon its face appears to have been altered in a material part can claim under it the enforcement of any right created by it, unless the alteration was made before the completion of the document or with the consent of the party to be charged under it or his representative in interest.2

This rule extends to cases in which the alteration was made by a stranger, whilst the document was in the custody of the person producing it, but without his knowledge or leave."

'[See cases in notes 1 and 2, supra.]

2 [Gr. Ev. i. § 565; Angle v. Life Ins. Co., 92 U. S. 330; Drum v. Drum, 133 Mass. 566; Hunt v. Gray, 35 N. J. L. 227. A material alteration by a party after execution avoids, though innocently made (Booth v. Powers, 56 N. Y. 22; Eckert v. Pickel, 59 Ia. 545; Craighead v. McLoney, 99 Pa. St. 211), but then, in the case of a contract, a recovery may be had on the original consideration (Id.; Hunt v. Gray, supra); aliter, if the alteration be fraudulent. Meyer v. Huneke, 55 N. Y. 412. A negotiable instrument, materially altered by a party, is void even in the hands of an innocent purchaser for value. Benedict v. Cowden, 49 N. Y. 396; Angle v. Life Ins. Co., supra.

Alterations in a deed will not divest the title conveyed by it, though they will, if material, avoid the covenants. Gr. Ev. i. § 265; Herrick v. Malin, 22 Wend. 388. Alterations before execution should be noted in the attestation clause. Gr. Ev. i. § 564. As to alterations by consent or authority, see Penny v. Corwithe, 18 Johns. 499; Taddiker v. Cantrell, 69 N. Y. 597. But alterations by consent of parties may avoid the instrument as to sureties. Paine v. Jones, 76 N. Y. 274; Eckert v. Louis, 84 Ind. 99.]

3 Pigot's Case, 11 Rep. 47; Davidson v. Cooper, 11 M. & W. 778; 13