Cain v. I. Moyse & Co.

Mississippi Supreme Court October 15, 1893

Cain v. I. Moyse & Co., 71 Miss. 653 (Miss. 1893)

Woods

Opinion of the Court

Woods, J.,

delivered the opinion of the court.

The offered evidence of the alleged agreement between *656Julius Moyse and the appellant should have been excluded. See Barney, Johns & Co. v. J. Moyse & Sons, Opinion-book O, 314, unreported, Johns v. Moyse, 12 So. Rep., 483. The reasons given in that case for the exclusion of this testimony, apply with even greater force in the present case. In fact, however, the appellant was permitted to cross-examine Julius Moyse, and make such proof as he could, and he was permitted to do precisely what he avers was denied him.

There was no error in refusing the two instructions asked by the appellant. Having set up, in bar of the right to re'covery by plaintiff, a deed to the property which purported to have been executed by his adversary, and the genuineness of the deed having been denied by its reputed maker and denounced as a forgery, the burden of showing its authenticity was upon him who offered it.

Affirmed.

Reference

Full Case Name: E. A. Cain v. I. Moyse & Co.
Cited By: 1 case
Status: Published
Syllabus: 1. Replevin. Defense. Collusive sale under trust-deed. In replevin against the grantor for property purchased by the beneficiary under a trust-deed, it cannot be shown as a defense that at the sale there was a fraudulent agreement between the parties, by which plaintiff bought at a reduced price, purposely leaving a balance of the debt, in order that he might sue a third person, to whom defendant had sold other of the mortgaged property, and that, after this, on his payment of the final balance due, the property in suit was to be reconveyed to him. Johns v. Moyse, 12 So. Rep., 483. 2. Burden oe Prooe. Genuineness of deed. Where, in a trial, one relies upon a deed purporting to have been executed and acknowledged by his adversary, who denies its execution and testifies that it is a forgery, the burden is upon him who claims under it to show that the instrument is genuine.