Stump v. Hughes
| Decision Date | 31 March 1818 |
| Citation | 6 Tenn. 93 |
| Parties | F. STUMP v. WILLIAM HUGHES. |
| Court | Tennessee Court of Appeals |
The handwriting of an attesting witness may be proved, either when he is dead, or resides beyond the limits of the State, or is to remain there on business until after the trial.
[Cited in: 6 Yer., 370; Meigs, 97; 5 Pickle, 587.]
Hughes brought suit against Stump in the Circuit Court of Davidson. The declaration states, that, in consideration of $300 to be paid by Joseph Bobjack to Elijah Robertson, now deceased, they and each of them agreed, and put their agreement on their part in writing, and subscribed it with their names respectively, on the 12th of December, 1787; that Elijah Robertson should make a deed in fee to Bobjack, his heirs and assigns, for 1,000 acres of land within fifteen miles of Gen. Green's survey, to be as good, &c. Avers performance on the part of Bobjack, and that the written agreement was assigned by Bobjack to the plaintiff Hughes, and delivered to him, of which Stump had notice. Nevertheless neither of them had made the deed to Bobjack or to the plaintiff. There is another count similar to this, except that the promise to make the deed is by Stump, in consideration of $300 to be paid to Robertson.
The defendant Stump pleaded non-assumpsit and the statute of limitations, on which issue was joined. The jury found the issues for the plaintiff, and assessed $600 damages.
The errors assigned are: 1st. That the Court permitted the written agreement without legal proof of its execution. 2dly. A refusal to grant a new trial.
There appears to be two subscribing witnesses to the written agreement, Daniel Rowan and R. Jones, neither of whom was produced on the trial. Thomas Hickman proved the handwriting of Daniel Rowan, one of the subscribing witnesses, and that he was reported to be dead. That about the year 1787, he knew a man in this county of the name of Jones, who, he understood, lived somewhere over the Mississippi, and had been here for a short time once of twice afterwards. On this evidence, the Court permitted the plaintiff to prove an acknowledgment by the defendant. Thomas Smith deposed that the paper in question was deposited with him in December, 1787, for safe-keeping by Bobjack; that then it called for 1,000 acres of land; that witness returned it to Bobjack in June next thereafter, who went to North Carolina, and stayed two or three years; and, on his return, again deposited the paper with the witness, and went to North Carolina. Robertson died shortly after. Bobjack then sent witness a power of attorney to act for him, and in a short time informed the defendant of his power to get the land or its value. The defendant said he was Robertson's security to convey 1,000 acres of the land on Duck River to Bobjack. That he wished him to sue Robertson's executors, as the estate was much involved. About that period, witness frequently heard the defendant say he was security for Robertson to Bobjack for 1,000 acres of land, and was afraid he should be obliged to pay it, but the paper itself was not presented to the defendant. This witness also proved the assignment from Bobjack to the plaintiff. The plaintiff's counsel then offered to read the paper to the jury, to which the defendant's counsel objected, because the execution was not sufficiently proved, and because the writing had the appearance of having been altered. The Court overruled the objection, and permitted the paper to be read in evidence.
Alexander Smith deposed that Bobjack told him he had bought 800 acres of land from Robertson, a few days or a few weeks afterwards, he told him he had bought 200 acres more, and that for the whole quantity he was to give a mare, a rifle, and some cash.
R. Weakley, a witness, deposed that in 1787, land of the description in the writing would sell from twelve and a half to twenty-five cents per acre, the most common price was from eighteen to twenty cents.
T. Hickman thought it at that time worth from twenty to twenty-five cents per acre. Both these witnesses thought the paper writing was altered, and the word ““Ten,” inserted with ink different from the rest of the writing.
Thomas Harney deposed that, about a year before this suit was commenced, he called on the...
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