104 N.C. 474
N.C.
1889
Avery, J.

— after stating the facts: The administrator of William Ballinger is not entitled to recover unless his intes *477 tate had a good cause of action when he sued out the original summons. William Ballinger held the note which, upon its face, was made payable to him as executor of Richard Ballinger. There is no presumption of law arising from possession that he held in his individual right rather than in his fiduciary capacity, when the express terms of the instrument show that he received it as executor, and neither the allegations of the complaint nor the evidence tends to prove that the legal or equitable right passed to him, personally, by reason of any settlement recognized by law as valid. If plaintiff’s intestate had held a negotiable bond, payable to any person other than his testator, Richard Bal-linger, or himself, as his executor, then, in the absence of proof of any such relation to the obligee as that growing out of the trust in this case, the presumption would have arisen in an action brought by him against the obligor that he was the real party in interest and entitled to recover the sum due; but the burden was on the plaintiff to show affirmatively a transfer of ownership of the note from himself, as personal representative, to him individually. The rule applicable in this case was laid down by Justice Ruffin, for the Court, in Rogers v. Gooch, 87 N. C., 442. “The provision of the statute (Bat. Rev., ch. 45, §130; The Code, §1511) is, that every action brought by an executor or administrator upon a cause of action or right to which the estate is party in interest shall be brought in his representative capacity, and, under The Code, there is no middle ground, for, whenever the action can be brought in the name of the real party in interest, it must be so done.” In that case the Court, after citing Eure v. Eure, 3 Dev., 203; Setzer v. Lewis, 69 N. C., 133; Davis v. Fox, ibid., 435, and Alexander v. Wriston, 81 N. C., 191, say that, if it was not altogether certain before, it is made absolutely certain now by the statute already mentioned and *478 section 55, C. C. P. (The, Code, §177), that an action on such a note could only be maintained by an administrator de bonis non of the testator.

This case is readily distinguishable from that of Holly v. Holly, 94 N. C., 670. Indeed, the principle decided there sustains the view we have stated. The facts in that case were, that Augustus J. Holly held, at the time of his death, two notes executed by G. W. Womble and payable to his brother, W. J. Holly, not endorsed bj^ said payee. The Court held that the presumption of ownership would have arisen in an action brought by A. J. Holly, or his executor, against Womble, the obligor, but not as against the obligee, and that the mere possession gave rise to no presumption of an assignment of the notes by the obligee to the holder. The Court cited with approval the case of Robertson v. Dunn, 87 N. C., 191, in which the same rule is laid down. But, in this case, the intestate of plaintiff did not hold a bond in which another was named as obligee, but one which was payable, by its terms, to himself as executor, and he cannot rely on a presumption of law to contradict the instrument, when he offers no explanation. When the facts in any case are known, or admitted, and are inconsistent with a presumption raised by law in the absence of evidence, it has been held by the Courts that such presumption is rebutted. Doggett v. Railroad Co., 81 N. C., 459.

It appearing from the face of the note that, when executed, it constituted a part of the trust fund held by William Bal-linger, as executor, he was required by The Code, § 1511, to sue for it in his representative capacity, and cannot now avail himself of a presumption that arises only in the absence of such direct proof of ownership.

In Rogers v. Gooch, supra, the administrator of a personal representative was not permitted to maintain an action in his own name on a bond that was not allowed the latter as *479 a credit, and the amount of which was charged to him in an action against him for settlement of the estate. He had not paid the amount with which he had been declared chargeable, and it was, therefore, decided that the action must be maintained by the administrator de bonis non of Mrs.- Phillips, and not by the administrator of her executor, Rogers, who was the payee, in his fiduciary capacity, named in the note. That case is, therefore, exactly in point. This action should have been brought by an administrator de bonis non of Richard Ballinger.

Affirmed.