Vann v. Edwards , 128 N.C. 425 ( 1901 )

MONTGOMERY, J.

Tbe note, for tbe recovery of which this action ivas brought, was originally the sole and separate pioperty of tbe wife of tbe plaintiff’s intestate, who was the mother of the defendant, and who died before her husband, tbe father of the defendant. The note' wias executed by the defendant to his mother and by her was endorsed and transferred to the defendant without her husband’s knowledge or consent. Tf that was the defendant’s only claim to the note it would avail him nothing (Walton v. Bristol, 125 N. C., 419), and it would have passed to the husband as his property upon the death of his wife, subject to the payment o£ her debts. But there was evidence tending' to show that the' note had been in the possession of the plaintiff’s intestate after the dearth of Ms wife; that it was afterwards seen in the hands of the defendant, 'and was in his hands art the time of the plaintiff’s intestate’s death. It is to be observed in passing, however, that there was no attempt made by the defendant to show how he got possession from his father. Anyway, the defendant asked the Court to instruct the jury thait, “If the jury finid that the note in controversy Was in possession of Darius Edwards at any time after the death of Sarah E. Edwards, and prior to October, 1896, and that afterwards it was in possession of the defendant, from October, 1896, until the commencement of this 'action, the law presumes thait 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 the testimony, that such possession is not lawful, and unless tire plaintiff so satisfies the jury, you must answer tire first issue ‘No.’ ”

The prayer was refused and therein there was error. Jackson v. Love, 82 N. C., 405; Causey v. Snow, 120 N. C., 279.

New trial.

Douglas, J., concurs in result.