Frazer's Adm'rs v. Frazer

• Decision Date: 18 October 1877
• Citation: 76 Ky. 397
• Parties: Frazer's Adm'rs v. Frazer, & c.
• Court: Kentucky Court of Appeals

76 Ky. 397

Frazer's Adm'rs v. Frazer, & c.

Court of Appeals of Kentucky.

October 18, 1877

APPEAL FROM METCALFE CIRCUIT COURT.

J. W COMPTON AND LEWIS MCQUOWN FOR APPELLANT.

First. The note sued on was executed Oct. 16, 1856 and due twelve months after date. The indorsement on the back of the note shows that $40 were paid on the note Dec. 25 1862. This payment evidenced by the indorsement on the back of the note suspended the operation of the statute of limitations between the accrual of the cause of action Oct. 16, 1857, and the date of payment. (English v. Wathen, 9 Bush, 387.)

The possession of the note with the ancient indorsement thereon is prima facie evidence of the facts recited in the indorsement. (1 Green leaf on Evidence, 121.)

Second. The plea of non est factum is not good-- first, because the an swer of the guardian ad litem, wherein this plea is attempted to be made, is not sworn to. (See Gen. Stat. sec. 4, chap. 22.) This section is inconsistent with and repeals sec. 143, Code of 1854; second, because its language is insufficient to put in issue the execution of the note. (Trustees, & c. v. Fleming, ex'r, 10 Bush, 234.

ROUSSEAU & MILLER FOR APPELLEES.

A personal representative makes a note his own by charging himself with it in a settlement of his accounts, although the note was executed or payable to the decedent or his representative. (Jones v. Everman, 15 B. Mon. 633.)

The indorsement is not evidence that a payment was made as therein set forth. (Hopkins v. Stout, 6 Bush, 375.)

ROUSSEAU AND SMITH ON SAME SIDE.

The note having been charged to L. H. Frazer became his individual property, and therefore he was interested, and not a competent witness for himself in this action to prove a promise to pay the debt in order to take it out of the statute of limitations, and the exceptions were properly sustained to his deposition. (2 Bush, 42; 1 B. Mon. 58; 3 Met. 146.)

The real party in interest must prosecute the action in his own name (Code, sec. 30), and therefore the cross-petition of T. A. R. Frazer's adm'r was properly dismissed.

A guardian ad litem can not be appointed for an infant defendant until after service of summons on the infant. (Civil Code, sec. 56; Beverly, & c. v. Perkins, 1 Duvall, 254.)

OPINION

PRYOR JUDGE:

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: " The time when the indorsement was made is a fact to be settled by the jury, and to this end the writing must be laid before them. If there is no evidence to the contrary, the presumption is that the indorsement was made at the time it purports to bear date, and the burden of proving the date to be false lies on the other party."

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