Nicholson v. . Commissioners , 119 N.C. 20 ( 1896 )

This case was heard at the last term of the Court on the appeal of the defendant (118 N.C. 30), and is now before the Court upon a petition to rehear.

The first ground of error set forth in the petition is that this Court reversed the Court below for the reason that the "Will of C. W. Nicholson was not made a part of the record, and that it was not shown to the Court that there was a personal representative of said C. W. Nicholson." This assignment of error is not true in fact, as will plainly appear upon reading the case as reported supra. It is true that in the argument of the case it is stated that the will of C. W. Nicholson is not made a part of the record, and that it does not appear to the Court whether there was an executor or not. But neither of these was the point decided by the Court, but they were only facts stated leading to the question decided.

The plaintiff in her complaint claimed that she was the assignee of $712.72 in a judgment which Currituck County had recovered and held against Dare County. This was denied by the defendant and made the issue to be tried, and is the only issue decided by this Court at the last term. (23)

The plaintiff by her complaint made the proceedings, the reports and judgments in the case of Currituck County v. Dare County, a part of her complaint. And on the trial the plaintiff offered and read this record in evidence, which was the only evidence offered in the case, except the will of C. W. Nicholson. So if there is any evidence to sustain the plaintiff's allegation that plaintiff is the assignee of $712.74 in the judgment of Currituck against Dare, it is in this record introduced by plaintiff. Upon examination of this record we find it stated that "on 2 March, 1882, the Commissioners of Currituck County assigned, of this judgment against the defendants, the following amounts to the persons named below," and among the names below is that of C. W. Nicholson, and opposite his name is set $712.74. We find the name of C. W. Nicholson as many as seven times mentioned in this record, and the name of Lovey Nicholson is not to be found in it. There is this entry, "8. To paid Mrs. Nicholson, $276.50." But this was no part of the judgment of Currituck against Dare, even if the "Mrs. Nicholson" mentioned is Mrs. Lovey Nicholson, the plaintiff in this case; and there is nothing, unless it be this entry, to show that she is.

Upon this evidence on the trial below the defendant asked the Court to charge the jury "that there is no evidence of an assignment of any judgment, or the interest of any judgment, to plaintiff by Currituck County." This prayer was refused by the Court, and we said there was error in this refusal. And after another argument and a full consideration of the whole case we are of the same opinion now that we were then.

(24) In the argument, the counsel for plaintiff seemed to lay great stress upon the fact that it appeared from the record that C. W. Nicholson died in June, 1880, and this assignment was not made until May, 1882. But we are unable to see the force of this argument; for if it should be held (and we do not so hold, as that question is not before us) that it is void as to C. W. Nicholson, it could not follow that this made it a good assignment to some one else to whom it was not assigned.

It was suggested on the argument at this term that the plaintiff could probably sustain her action under the doctrine of presumption that the clerk of Currituck had qualified, or appointed and qualified, the plaintiff or some one else the personal representative of C. W. Nicholson; and that as more than two years had elapsed since the death of C. W. Nicholson the plaintiff or whoever qualified as the personal representative, had paid the debts and settled the estate, and assigned this claim to plaintiff as a part of her legacy under the will. But this can not be so, as there is nothing for the presumption to rest upon. There is no law requiring a clerk to appoint an administrator or to qualify an executor, unless he is applied to and asked to make such appointment. Generally, presumptions arise from admitted or established facts, and is a very useful principle of legal jurisprudence. But it can not be presumed that a party is the owner of property without some admitted or established fact to start with. Where an indebtedness exists by a promissory note or other negotiable paper capable of manual delivery, and the plaintiff is in possession of the note or other paper, the law, in the absence of other evidence, presumes the holder to be the owner. But here is the fact that the plaintiff is in possession of the note which creates or raises the presumption. But if the plaintiff had no (25) possession of the note, there would be no presumption. So, if one is in the actual possession of an office, the fact that he is in, exercising the duties of the office, raises the presumption that he is rightfully in. So it is that where an officer of court does a thing in the line of official duty the law presumes it rightfully done until the contrary appears. But it can not be presumed that a court has tried a case or made an appointment, although it had the right to do so if applied to, and if he does this it must be made to appear upon proof of the fact. So, there can be no presumption that the clerk had appointed and qualified a personal representative of C. W. Nicholson. And as there is no evidence or presumption that any one has ever been appointed, there can be no presumption that they acted properly or improperly.

Besides, this suggestion is not only without foundation to rest upon but it is in direct conflict with the allegation of plaintiff's complaint, which alleges that she is the assignee of the County of Currituck. And it was argued before us by plaintiff's counsel that C. W. Nicholson never had any interest in this judgment upon which this action was brought.

The petition must be dismissed, and the case goes back for a new trial, when the plaintiff will take such course as she may be advised by counsel. Petition dismissed.

NEW TRIAL.

Cited: S. c., 121 N.C. 28; Hamer v. McCall, ib., 197; Nicholson v.Comrs., 123 N.C. 15.

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