Griffith v. Lewin

Citations

• 125 Cal. 618
• 58 P. 205
• 1899 Cal. LEXIS 915

Syllabus

<p>Fstates of Deceased Persons—Action Upon Rejected Note-Evidence— Nonpayment — Prima Facie Case — Burden of Proof.—In an action against the administrator of a deceased person upon a rejected note a prima facie case of nonpayment of the note is made by the introduction of the note in evidence, with the indorsements thereon, and proof of the signature of the decedent thereto, and of the due presentation of the claim and its rejection; and the burden of proof was thereby cast upon the defendant to prove by competent evidence that the note had been paid; or to raise a legal presumption of payment sufficient to rebut the prima facie case made by the plaintiff.</p> <p>Id.—Prior and Subsequent Notes Secured by Mortgage—Presumptions.—Mere proof that a note secured by mortgage had been executed by the deceased prior to the note in suit, and that a subsequent note and mortgage had been executed about a year and a half thereafter, for about the amount then due on the old mortgage and the note in suit, without any evidence that the new note and mortgage was in payment of the old, or as to the consideration thereof, or any evidence that either of the mortgages had any connection with the note in suit, cannot raise any presumption of payment of the note sued upon; but it must be presumed that if the note had been paid, it would have been delivered up, and it being found at the death of the decedent in possession of the plaintiff, it must be presumed that it had not been paid by the decedent.</p> <p>id.—Subsequent Payments by Deceased.—The note in suit having been indorsed with numerous payments in the handwriting of the deceased subsequently to the execution of the last mortgage, it cannot be presumed that the note was included in the last mortgage and settled thereby in the ordinary course of business.</p> <p>Id—Receipts for Money not Indorsed.—Receipts given to the plaintiff by the deceased for money not indorsed on the note, should be such in their contents as to raise a pres