Henning v. Werkheiser

Per Curiam.

The facts of the case are that neither of the witnesses was present when the article was executed, nor had the defendant’s authority to attest it when he subsequently subscribed it in the defendant’s absence, and at the plaintiff’s request. Marshall v. Gougler shows that this subsequent act of authentication superadded to a deed already complete, made the whole void, subject, however, to be restored by subsequent ratification by the party to be affected by it, as a new act of execution, or as an equivalent for a precedent authority. The defendant did in fact ratify the act of subscription by one of the witnesses, but not the act of the other, and enough of the canker was left at the core of the instrument to destroy it. As the fact of execution was put in issue, the plaintiff having called the subscribing witnesses without success, was not at liberty, as in the case of an unexploded deed, to give evidence aliunde of the execution of what had ceased by his misconduct to be a deed at all. There was therefore no execution of the article, as it appeared at the trial with the clause of attestation subscribed as an integrant part of it; and the jury should have been so instructed.

Judgment reversed.