Battles v. Fobes

Shaw, C. J.

After another trial, this case again comes before the court, on an agreed statement of facts, slightly differing from those appearing on the former report. 21 Pick. 239. The principal question formerly discussed was, whether it was competent for the plaintiff to prove that he executed the assignment more than sixty days after its date. The court considered that the instrument did not purport to be executed on the day of its date ; on the contrary, it contemplated an execution after-wards. The instrument itself therefore stated no time at which it was executed by the plaintiff; and consequently it was considered open to proof, and the doctrine of estoppel did not apply. As the instrument required an execution within sixty days from the date of making it, to render it effectual, the fact of execution might raise a presumption that it was done within the time thus limited, so as to throw the burden of proof upon the party averring the contrary. This was proved.

But further ; a deed takes effect from its delivery, and therefore an execution and delivery on a day different from the date may be shown by evidence aliunde. Hall v. Cazenove, 4 East, 477.

The only particular, in which this statement of facts differs from the former report, is this, that the plaintiff had agreed to become a party to the assignment, within the sixty days, though he did not execute it till a week or two after. By this, we understand that he had verbally expressed his willingness and intention to become a party, within the time limited. The court are of opinion, that this circumstance does not vary the legal result. The point decided was, that the instrument bound parties only; that one did not bring himself within the description in the instrument, so as to be a party, unless he executed it within the time. An expressed intention to become a party did not make him a party ; it would not subject him to the duties, nor entitle him to the benefits of being a party.

Defendant defaulted.