This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In the absence of some statute to the contrary, a signature by mark affixed by the party whose signature it is intended to be, is sufficient.1 Thus where a grantor signed by mark immediately below a clause which contained his name, and opposite a seal, such signature was held to be sufficient.2 It is not necessary that an attesting witness sign in addition thereto.3 Thus a signature to a mortgage by mark, without the signature of any attesting witness thereto is sufficient.4 A signature by mark is sufficient, even if the name of the person whose mark is affixed is not added by any one.5 The signature to an instrument required by law to be in writing, as a promissory note,6 may be made by mark. Thus in a case often cited7 an indorsement in lead-pencil of the figures "1. 2. 8.," intended as a signature in a contract of indorsement of a bill of exchange, was held valid.
6 Augur v. Couture, 68 Me. 427.
7 Weston v. Myers, 33 Ill. 424.
8 Bank v. Sherer, 108 Cal. 513; 41 Pac. 415.
1 Bates v. Harte, 124 Ala. 427; 82 Am. St. Rep. 186; 26 So. 898; Foye v. Patch, 132 Mass. 105; Sanborn v. Cole, 63 Vt. 590; 14 L. R. A. 208; 22 Atl. 716; Finlay v. Pres-cott, 104 Wis. 614; 47 L. R. A. 695; 80 N. W. 930.
2Devereux v. McMahon, 108 N. C. 134; 12 L. R. A. 205; 12 S. E. 902.
3Bates v. Harte, 124 Ala. 427;
82 Am. St. Rep. 186; 26 So. 898; Finlay v. Prescott, 104 Wis. 614; 47 L. R. A. 695; 80 N. W. 930.
4 Meazels v. Martin, 93 Ky. 50; 18 S. W. 1028.
5 Zimmerman v. .Sale, 3 Rich. L. (S. C.) 76.
6 Handyside v. Cameron, 21 Ill. 588; 74 Am. Dec. 119; Shank v. Butsch, 28 Ind. 19; Staples v. Bank, 98 Ky. 451; 33 S. W. 403; Lyons v. Holmes, 11 S. C. 429; 32 Am. Rep. 483.
7 Brown v. Bank, 6 Hill (N. Y.) 443; 41 Am. Dec. 755.
Such signature is valid though no attesting witness signs.8 If a note is signed by the maker's mark, his name being written thereto and an attesting witness signs, proof of such witness's signature is sufficient where he is dead at the time of the trial.9 Anyone who is a competent witness at law may act as attesting witness to a note. Thus, where by statute the parties and their wives are competent witnesses in an action at law, the wife of the payee10 may act as attesting witness to a note. The construction of some statutes requires a signature by mark to be attested by the signature of an attesting witness who can write; as this provision is made to obviate the chance of fraud, the payee cannot be such subscribing witness.11 A promissory note signed by the maker by mark in the presence of the payee, no third person being present, is therefore invalid.12