Opinion
(June Term, 1852.)
1. There is no rule of law which directs that a consideration is to be inferred from the fact of the execution of a sealed instrument. A deed is valid without a consideration, and therefore the law makes no inference, one way or the other, as to the consideration.
2. To rebut the presumption of the payment of a bond, the defendant proved that the defendant said to the holder, "If you will prove that it is my handwrite, and is a just note, I will pay it": Held, that the plaintiff was bound to show, not only the execution of the note, but also its justness, as, for instance, what it was given for, the circumstances under which it was given, etc., so as to show that it was not obtained by fraud or surprise, etc., and was in fact "a just note."
APPEAL from Caldwell, J., at Spring Term, 1852, of ROCKINGHAM.
Miller and Gilmer for plaintiff.
No counsel for defendant.
DEBT on a single bill for $40, tried on non est factum, payment at and after the day. On the trial it appeared that it had been executed in 1830 to the intestate of the plaintiff, payable one day after date; that the defendant had always been able to pay the amount; that it was presented to him in 1846, and payment demanded; that he denied its execution several times, but at last said to the holder, "If you will prove that it is my handwrite, and is a just note, I will pay it." Two witnesses deposed that the signature and the body of it was in defendant's proper handwriting.
Defendant's counsel moved the court to charge the jury that the plaintiff ought to prove that the said note had not been paid. The court declined so to charge, and told the jury, if the defendant promised to pay the note in question if it were proved to be in his handwriting and a just note, and they were satisfied from the testimony that it was in the hand writing of the defendant, it was sufficient to remove (336) the presumption of payment; that where the execution of a sealed instrument was proved, the law inferred that it was just and founded upon a just consideration. The jury returned a verdict for the plaintiff. Rule for a venire de novo because of misdirection. Rule discharged. Judgment; and the defendant appealed to the Supreme Court.
His Honor charged that "Where the execution of a sealed instrument is proved, the law infers that it was just, and founded upon a just consideration." In this there is error.
We are not aware of any rule of law by which a consideration is inferred from the fact of the execution of a sealed instrument. No consideration is necessary in order to give validity to a deed. It derives its efficacy from the solemnity of its execution — the acts of sealing and delivery, not upon the idea that the seal imports a consideration, but because it is his solemn act and deed, and is therefore obligatory. No consideration being necessary to give validity to a deed, it follows that the law does not, from the fact of execution, make any inference one way or the other in reference to a consideration. A misapprehension of this subject may have arisen from the fact that in deeds of conveyance, operating under the statute of uses, either a valuable or a good consideration is necessary in order to raise the use. But the general rule is, a deed is valid without a consideration. A voluntary bond for money, executed to a stranger, and professing on its face to be without consideration, and for mere friendship, is binding.
Another view may be taken of the case. The defendant annexed to the promise, which is relied on to rebut the presumption of payment, two conditions precedent: First, proof of his handwriting; (337) second, proof of its being a just note. But his Honor put the case to the jury in such a way as entirely to exclude the second condition and deprive the defendant of all benefit from it. He had as much right to the benefit of the second condition as of the first, and might well insist upon proof of the justness of the note; as, for instance, that it should be proven what it was given for, the circumstances under which it was given, etc., so as to show that it was not obtained by fraud or surprise, and was in fact a "just note." The promise is expressed in these words, "I will pay it, if you will prove that it is my handwriting, and is a just note." By a proper construction, the latter condition may have reference to the present as well as the past. If so, the defendant had a right to insist not only upon proof that the note was just in its inception, but continued to be just; that is, had not been paid. The matter will then stand thus: Although the note was duly executed, the law presumes that it has been paid, and at the same time, according to the charge, the law, from proof of its execution, infers that it is just; that is, has not been paid — which inference is inconsistent and repugnant. This question of construction is not adverted to by his Honor, although it is presented by the exceptions. But it is said, according to this construction, the promise amounts to nothing. That may be so, and, if so, it only shows that the defendant was cautious, and was careful to require proof sufficient to rebut the presumption of payment which the law made in his favor.
PER CURIAM. Venire de novo.
Cited: Woodall v. Prevatt, 45 N.C. 201.
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