49 Kan. 347 | Kan. | 1892
The opinion of the court was delivered by
This was an action brought by the First National Bank of Frankfort, Kas., to recover upon a promissory note executed on the 14th day of May, 1883, by H. H. Lowery and Mary E. Lowery to Walter Bowman and Henry Bowman Brady, for $1,500, payable October 1, 1886, with interest at the rate of 8 per cent, pér annum, and also to-foreclose a mortgage executed by the Lowerys upon the same day to secure the payment of the note. The bank alleged in its petition that the payees named in the note, for a valuable consideration, had sold and delivered the note to it before the
The O’Keeffes now contend that the proof offered is insufficient to sustain the judgment that was rendered. They claim that, as the issues were formed, proof was necessary that the bank was the owner and holder of the note. The note was not indorsed by the payees, and there was no written transfer of the same to the bank, and, as its ownership of the note had been denied, it was incumbent upon the bank to prove that it was the owner and holder of the same. We think the proof offered was sufficient. The note and mortgage were in the possession of the bank and were produced by it at the trial. A negotiable note may be transferred without written indorsement and by mere delivery. The possession of the note and its production at the trial furnished prima fade evidence of
Some of the considerations presented by the plaintiffs in error would be entitled to great weight if the payees were contesting the ownership of the unindorsed paper with a stranger in possession; but when the bank produced and read the note in support of its title, it furnished presumptive evidence upon which it might safely rest; and nothing being shown to repel the force of the presumption, it was entitled to recover. (Williams v. Norton, 3 Kas. 295; Washington v. Hobart, 17 id. 275; Eggan v. Briggs, 23 id. 710; Savings Association v. Barber, 35 id. 488; Durein v. Moeser, 36 id. 441; King v. Gottschalk, 21 Iowa, 512; Tuttle v. Becker, 47 id. 486; Gill v. Johnson, 1 Metc. [Ky.] 649; Jackson v. Love, 82 N. C. 405; Robertson v. Dunn, 87 id. 191; Garner v. Cook, 30 Ind. 331; Gano v. McCarthy, 79 Ky. 409; Pom. Rem., § 140.)
The judgment of the district court will be affirmed.