141 P. 103 | Utah | 1914
This action was brought by the plaintiff, hereafter called respondent, as the payee, to recover on a certain promissory note, and to foreclose a mortgage which was made and delivered to secure the payment of said note. The defendants Joseph H. and Martha Jane Hellewell were made such as the makers of said note and mortgage, and the Wheelwrights were made parties as subsequent purchasers of the real estate described in said mortgage. James Pingree, as administrator of the estate of Richard Flint, deceased, was also made a party to the action for the reason that he, as such administrator, claimed some interest in the mortgaged premises. The Wheelwrights appeared and in their answer admitted the execution and delivery of the note and mortgage, admitted that they claimed some interest in the real estate described in said mortgage, setting forth that they purchased the premises, and as part of the purchase price thereof had assumed and agreed to pay said note and mortgage, that they were, and always had been, able and willing to pay said note, but could not safely do so because of the disputes existing between the respondent and said administrator respecting the ownership of said note and mortgage; the
“He (the deceased) told me he had received our letter and wished to know what we wanted to see him about. I told him that we wished to know if he claimed an interest in the Hellewell mortgage, and on what ground he made the claim. He stated he did claim the money due on the mortgage, that he claimed all of it, and that his reasons for claiming it were that he was out more than the amount due on the mortgage on account of the loss he had sustained at the hands of his daughter, Josephine Flint’s [respondent’s] former husband, a Mr. Stanley. We did not go into the claim further than that.”
Appellant’s counsel in his brief contends, and in his oral argument claimed, that the fact that the deceased had possession of the paper constituted prima facie evidence of his ownership, and that respondent had not overcome that presumption. We do not understand the law to be as claimed by counsel, nor do the cases cited by him 4, 5 •sustain his contention. Upon the other hand, the authorities are to the effect that, where a promissory note is made payable to a certain person or order, the possession of such paper by another without indorsement by the payee -does not affect the presumption of ownership-. In passing on that question in Bice v. McFarland, 41 Mo. App. 490, the rule in the headnote is stated thus:
“The possession of an unindorsed note does not relieve the holder from the presumption the note still belongs to the payee.”
In Dorn v. Parson's Adm'x, 56 Mo. 601, the rule is stated in the following words:
“The possession of'a note, not payable to bearer nor indorsed in blank, by a third person is not even prima facie evidence of ownership.”
In Cavitt v. Tharp, 30 Mo. App. 131, the law is stated thus:
*426 “Possession of an unindorsed promissory note by one other than the payee is no evidence of ownership in the holder.”
In 2 Ency. Ev. 517, the law upon the subject is thus briefly stated:
“The payee of a note is presumed to he the owner until the contrary is shown.”
To the same effect are Bowers v. Johnson, 49 N. Y. 432; Richardson v. Moffit-West Drug Co., 92 Mo. App. 515, 69 S. W. 401; Hair v. Edwards, 104 Mo. App. 213, 77 S. W. 1089; 1 Daniel’s Neg’l. Insts. (6th Ed. 1913) sections 664a and 741. Although the deceased had possession of the note, and before his death turned it over to appellant, yet that possession in no way affected the presumption that respondent, the payee thereof, was the legal owner, and until that presumption is overcome by some legal and competent evidence, the judgment in hex favor should not be disturbed. Practically all that appellant offered to rebut the presumption was his own evidence that he remembered when the note and mortgage were made; that the deceased “turned the money to Joseph Hellewell (one of the makers of the note) for this mortgage, $200 of which was a cashier’s check given by our bank to the deceased. I cannot state . . . what the other money was.” In addition to this, there were two letters written by respondent to her brother; but there is nothing in those leters which would authorize an inference even that the note and mortgage did not belong to her. Appellant’s evidence, therefore, was at most merely conjectural. There was therefore not sufficient evidence to dissipate the presumption that respondent was the owner of the note and mortgage in question. But suppose it be assumed that there are a few isolated facts from which an inference against respondent’s ownership might be drawn; yet the evidence in that respect is so weak and inconclusive and of such a character that inferences might be drawn from it both ways. It therefore does not rise to the dignity of evidence. This is, as we have pointed out, an equity case, and therefore, unless