Dissenting Opinion on Petition for Rehearing. The appellant's petition for rehearing presents for our consideration again the question as to the burden of proof under a plea of non est factum. Upon a careful review, I am of the opinion that the petition for rehearing should be granted. It is a well established rule that forgery of a negotiable instrument, except in the case of ratification or estoppel, nullifies the instrument as to all parties against whom the forgery is committed and is a defense by such parties even as against holders in due course. If the negotiable instrument was executed without authority from its supposed maker, the presumptions with which the law clothes a holder in due course do not apply. 8 Amer. Juris., § 604, page 318. Our statute provides that "when a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative." § 19-123 Burns Ind. Statutes 1933, § 12840 Baldwin's 1934.
Evidence that the signature of the maker was forged was clearly competent under the plea of non est factum. Dougherty v. Salt (1919), 227 N.Y. 200, 125 N.E. 94; Harris v. Randolph Co.Bank (1901), 157 Ind. 120, 60 N.E. 1025 *Page 572
Where the execution of an instrument is denied under oath, the burden of proof of its execution is on the party claiming under it. Baum v. Palmer (1905), 165 Ind. 513, 76 N.E. 108.
Under such a plea the burden was upon the appellee in the case at bar to prove the authority of Alsop to execute and deliver the alleged notes to himself.
I think the appellant is accordingly entitled to a rehearing if for no other purpose than to clarify and correct the opinion of the court on this issue.