Frazer's Adm'R v. Frazer, &C.
| Decision Date | 18 October 1877 |
| Court | Kentucky Court of Appeals |
| Parties | Frazer's Adm'rs v. Frazer, &c. |
APPEAL FROM METCALFE CIRCUIT COURT.
J. W. COMPTON AND LEWIS McQUOWN FOR APPELLANT.
ROUSSEAU & MILLER FOR APPELLEES.
ROUSSEAU AND SMITH ON SAME SIDE.
JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.
The administrators of the goods, etc., of Z. M. P. Frazer, deceased, instituted an action in equity in the Metcalfe Circuit Court for the purpose of settling the estate of their intestate, and as the personal estate was insufficient for the payment of debts, asked a sale of his land or so much as might be necessary for that purpose. His widow and children were made defendants to the action.
During the progress of the case Lewis H. Frazer, one of the administrators, who was also the administrator of Thomas A. R. Frazer, deceased, presented a note executed by the deceased, Z. M. P. Frazer, to himself (Lewis H. Frazer) as administrator of Thomas A. R. Frazer for the sum of $113, dated Oct. 16, 1856, and due twelve months after date.
It being doubtful whether the land was of sufficient value to pay the debts, the appellant, Lewis H. Frazer, as administrator of Thomas A. R. Frazer, sought by an appropriate pleading to make the homestead claimed by the widow liable for the debt, the note having been executed prior to the passage of the homestead law.
The note filed with the cross-petition of the appellant had indorsed upon it two credits, one for $40, dated 25th of December, 1862, and the other for $10, paid the 20th of October, 1871. No signature was appended to either indorsement evidencing the payment, nor is there any proof in the record showing by whom the payments were made, except as to the credit of $10, entered on the 20th of October, 1871.
The widow and infant children interposed several defenses, and among them the plea of the statute of limitations, and also a denial of any payment on the note of their intestate.
It is conceded that the credit of ten dollars was entered by the appellant after the death of the obligor, by reason of some supposed claim of the estate of the latter against the estate of Thomas A. R. Frazer. The only question in the case is, the widow and children having denied that the payment as indorsed on the 25th of December, 1862, was made by their intestate, was it incumbent on the appellant to show that the obligor made the payment, or was the indorsement, in the absence of opposing proof, evidence sufficient to establish that fact?
It is insisted by counsel for appellant that the possession of the note with the ancient indorsement upon it is prima facie evidence of the facts recited in it, and therefore the payment suspended the operation of the statute from the maturity of the note to the date of the credit.
The rule stated by Greenleaf, in his work on Evidence (1 vol., section 121), is relied on in support of this position, and, it must be conceded, conduces to sustain the views of counsel. That author says:
In referring to the cases in which the indorsements were admitted as part of the res gestæ, the learned author says: "The grounds of these decisions are not stated in any of the reports, but it may be presumed that the reasoning on the side of the prevailing party was approved, namely, that the indorsement being made at the time it purported to bear date, and being according to the usual and ordinary course of business in such cases, and which it was not for the interest of the obligee at that time to make, was entitled to be considered by the jury; and that from it, in the absence of opposing proof, the fact of actual payment of interest might be inferred." (...
To continue reading
Request your trial