Vann v. Edwards.
40 S.E. 853
N.C.
1902
Check Treatment
Montgomery, J.

An оpinion in tbis case was delivered at tbe ‍‌‌​‌‌‌‌‌​‌‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​‍February Term, 1901, аnd is to be found in tbe 128 N. C., 425. A petition to rebear was filed by tbe appellee and granted, and tbe mater is beforе- us again for consideration. Tbe material facts fоr tbe present purposes are these: Tbe defеndant, in 1888, executed to bis mother his bond in the sum of five hundred dollаrs. She, in tbe lifetime of her husband, gave tbis bond to the defendаnt by delivery and her endorsement, ‍‌‌​‌‌‌‌‌​‌‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​‍but without the knowledge or consent of her husband After the mother’s death tbe bond was in tbе father’s possession, but after bis death it was found in tbe defеndant’s. Tbe husband of the payee, who- was also tbe father of tbe defendant and payor, qualified as administrаtor of bis deceased wife, and having died before bе bad fully adminis *71 tered tbe estate, an administrator de bonis non was bad by tbe plaintiff, wlio brought tbis action ‍‌‌​‌‌‌‌‌​‌‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​‍for tbe rеcovery of tbe value of tbe bond.

There are in tbe petition to rehear two alleged errors: Tbe first is that tbe Court must have overlooked tbe statement in tbe сase on appeal “that it was admitted by tbe defеndant that be claimed the note by virtue of tbe endorsement of tbe same to him by his mother.” We were not inadvertеnt to that statement, but we regarded it not as depriving the defendant of tbe right to use, in connection with and as a part-of that- claim, the legal effect of his having in bis pоssession the note at tbe death of his father — the father having had possession of it after ‍‌‌​‌‌‌‌‌​‌‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​‍his wife’s death. The reсord shows that the case was tried on the theory that thе defendant was claiming the bond both under tbe gift and endorsеment of tbe mother and the presumption of ownershiр by possession in himself after the mother’s death and aftеr the father had bad it in his possession; for the Court permittеd him to introduce evidence' of his possession of thе note after it had been in tbe hands of the father, deсlarations of both tbe mother and the father to tbe effect that it had been given to the defendant and that hе did not owe it.

Tbe other error alleged in the petitiоn to rehear is that the Court held that the Judge below should hаve instructed tbe jury, “If the jury find that the note in controversy was in рossession of Darius Edwards at any time after the death of Sarah E. Edwards, and prior to October, 1896, and that afterwаrds it was in possession of the defendant, from ‍‌‌​‌‌‌‌‌​‌‌​‌‌‌​​‌‌​‌​​‌​‌‌‌‌‌‌‌‌​‌‌‌‌​‌​​​​​‌‌​‍October, 1896, until the commencement of this action, tbe law presumes that such possession was lawful and that he is the owner thereof; and the burden is upon the plaintiff to satisfy the jury upon preponderance of testimony that such possession is not lawful, and unless the plaintiff so satisfies the jury, you must аnswer the first issue ‘No.’ ”

*72 The counsel cited to us the cases of Thompson v. Onley, 96 N. C., 9; Holly v. Holly, 94 N. C., 670, and Robertson v. Dunn, 87 N. C., 191, ou the point to sustain bis view of the law. Uрon an examination of these cases, it will be seen that they are against his contention. It is decided in them that there is no presumption of ownership in favor of the holder of an unendorsed note against the payee. But the holder of the note in our case was the payor, and the presumption is with him.

The petition must be dismissed.