McBrayer v. Walker

Lamar, J. (After stating the foregoing facts.) The plaintiff relied on the face of the deed, which purported to convey title in fee simple. The defendants relied upon an entry on the back of the deed, apparently signed by the grantee, and showing that the deed was given as security for a debt which was infected with usury. The plaintiff insists that the defendants failed to prove the signature of the grantee, or otherwise to establish the execution or date of this entry. He contends that,' they having failed to carry the burden of proving the genuineness of the signature, the verdict in their favor is without evidence to suppo$ it. The presumption is that the deed was delivered on the day it bore date, and remained in the possession or control of the grantee or his successors. Coming thus from his possession, when he offered the same in evidence-.he vouched not only for the face of the instrument but made the paper and all self-dis-serving statements thereon admissible for the opposite party, without other proof than the fact that they formed a part of the document produced by his adversary. See Civil Code, § 5243. Of course entries irrelevant to the issue would be inadmissible. So, too, entries favorable to the person producing a document would have to be properly proved. Entries unfavorable to the party producing the paper might be explained, qualified, or nullified. But where one produces a paper and there is found thereon an entry, memorandum, or indorsement favorable to his adversary, the latter may rely on the same as evidence, without further proof of its genuineness. The burden of showing it to be a forgery or alteration void against him is cast by law upon the party who offers the document containing such self-disserving [249] entry. See Civil Code, § 5242. The cases involving this question are comparatively rare. A number of decisions may be found which recognize that credits appearing on the back of a note may be relied on by the defendant, but, being in the nature of receipts, may be explained by the holder. In Harrison v. Henderson, 12 Ga. 22, an unsigned postscript to a letter was admitted. In Daglish v. Dodd, 5 C. & P. 238, an entry on the back of a letter and in a different handwriting was allowed to be used by the party against whom the letter itself bad been offered, the court saying, “You produced the paper; and if you put it in, the other side have the right to have the whole of it read.” So in Clark v. Ray, 1 Har. & John. (Md.) 323, an agreement was offered. On the back of the paper was a subsequent agreement differently signed, but the same was admissible against the party by whom the original had been offered. See also Pearson v. Forsyth, 61 Ga. 537; Wooten v. Nall, 18 Ga. 616; 1 Whart. Ev. (3d ed.) § 619. While these separate entries may not, strictly speaking, be “a part of the document,” yet they come within the principle of the Civil Code, § 4241, that where either party introduces a part of a document, the opposite party, without further proof of execution, may read so much of the balance as is relevant. The fact that the record shows that the entry was signed by the grantor instead of by the grantee may have been a clerical error. But it does not change the fact that the deed produced bore what purported to be the signature of A. E. McBrayer, the grantee. The explanation as to his age, the difficulty with which he wrote, the fact that the date and the amounts named in the due-bill coincided with the date and the amounts named in the face of the deed which had long been in the possession of the plaintiff, amply sustained, if they did not demand, a finding that ■ the deed was void as title, because of the twenty per cent, interest charged. If the usurious contract was made subsequently to the presumed date of delivery, it was incumbent upon the plaintiff to establish that fact. The evidence of the attorney was probably inadmissible; but as far as it went it was helpful to the plaintiff, tending as.it did to establish a sale and not a loan. Its exclusion c.ould not have changed the result. The defendants insist that under the Civil Code, § 5000, there could be no recovery against one of them where the evidence failed to establish the [250] plaintiff’s right to recover against the other two — especially where there is nothing to indicate the amount of their several interests. The verdict being sustained, and there being no error harmful to the plaintiff, it is needless to consider this point. Judgment affirmed. All the Justices concur.