Atchley v. Rimmer

• Decision Date: 20 October 1923
• Citation: 255 S.W. 366,148 Tenn. 303
• Parties: ATCHLEY v. RIMMER ET AL.
• Court: Tennessee Supreme Court

255 S.W. 366

148 Tenn. 303

ATCHLEY v. RIMMER ET AL.

Supreme Court of Tennessee.

October 20, 1923

Certiorari to Court of Civil Appeals.

Bill by W. P. Atchley, executor of George Walker, deceased, against Nell Rimmer and others. Decree for defendants was reversed by the Court of Civil Appeals, and on petition for certiorari the decree of the court of appeals was affirmed, and defendant petitions for rehearing. Rehearing denied.

L. D SMITH, Special Judge.

The record in this case presents a controversy between the complainant, W. P. Atchley, executor of George Walker deceased, on the one side, and the defendant, Mrs. Nell Rimmer, on the other side, as to the ownership of a certain $8,000 note executed by J. H. Rimmer and S. H. Rimmer to the said Walker. The complainant bases his claim to the ownership of said note under the will of said Walker. The defendant Mrs. Nell Rimmer, asserts ownership of the note by gift inter vivos from the said Walker.

Mrs. Rimmer and Mrs. Zenia Atchley, wife of the complainant, are sisters, and were nieces of George Walker. Mrs. Atchley lived with her husband at Knoxville; Mrs. Rimmer lived with her husband in Jefferson county. Walker was a bachelor about 70 years of age at the time of his death, and owned real estate near the Rimmers, and for several years immediately preceding his death made his home with them. On August 22, 1919, J. H. Rimmer and his brother, Shade Rimmer, executed their joint promissory note to Walker for $8,000, and to secure the payment thereof they executed a deed of trust on a tract of land in Jefferson county. The exact nature of this land transaction does not clearly appear in the record, but it seems that the $8,000 note represented balance of purchase money which the Rimmers owed to Walker in connection therewith. The trust deed was not recorded until October 29 or 30, 1919. On the same day or the next Walker made his will, in which he bequeathed to his nieces, Mrs. Rimmer and Mrs. Atchley, $4,000 each of the proceeds of this note, and nominated Dr. Atchley as the executor of his estate. Walker died in July, 1920, and on August 11th following, his will was probated, and Dr. Atchley qualified as executor. Shortly thereafter and after ascertaining that Mrs. Rimmer had the $8,000 note, and claimed its ownership by gift from Walker in his lifetime, and upon her refusal to turn it over to him as part of the assets of the estate Dr. Atchley brought the bill in this case to recover the note, and to have it decreed to belong to the estate for distribution under the will. Mrs. Rimmer resisted the bill by answer, setting up that Walker had given the note to her. The chancellor decreed in favor of Mrs. Rimmer's claim, and dismissed the complainant's bill. The Court of Civil Appeals reversed the chancellor, holding that Mrs. Rimmer had failed to make out her claim, and decreed that complainant was the legal owner of the note. On petition for certiorari this court affirmed the Court of Civil Appeals. A very earnest and proper petition for rehearing was presented, and the case has been argued at the bar.

The complainant made out a prima facie case by the introduction of the will, its probate, and his qualification as executor. Under the will Walker was the owner of the note in question, and specifically made disposition of the proceeds thereof, and named Dr. Atchley as the executor. Nothing else appearing, the complainant was entitled to the possession and ownership of this note, and, unless Mrs. Rimmer has made out her claim as a gift from Walker inter vivos, the action of the Court of Civil Appeals must be affirmed.

Counsel for Mrs. Rimmer, realizing that, in order to make out the gift, it was necessary to show both an intention upon the part of Walker to transfer the title of the note and actual delivery of the same by clear, ample, and convincing evidence, contend that this has been accomplished:

(1) By presumption of delivery of gift from the fact of Mrs. Rimmer having possession of the notes; (2) by the testimony of Mrs. Rimmer herself that Walker in person delivered the note to her with the statement "This is yours"; (3) by declarations of the donor made to witnesses after the gift that he had given and delivered the note to Mrs. Rimmer.

These contentions we shall now consider in connection with the reasons urged against them.

1. "Possession itself is presumptive evidence of ownership." This proposition of the defendant is rested principally upon a sentence found in the opinion of Mr. Justice Barton of the Court of Chancery Appeals in the case of Mason v. Willhite (Tenn. Ch. App.) 61 S.W. 298. There was involved in that case a gift of notes by a mother to her daughter. The sentence in the opinion relied upon here is found in a paragraph which reads:

"After a careful study of the evidence in the case, we have come to the conclusion that the evidence justifies the finding of the chancellor that the notes were given to the complainant. In the first place, it is to be said that she was found in possession of the notes at the time of her mother's death, she having died in Arkansas; and possession itself is presumptive evidence of ownership."

The expression "possession itself is presumptive evidence of ownership" was not strictly accurate, even under the facts of that case, and certainly not so speaking in the abstract. Its meaning in that case was that the possession of the notes by the claimant under the circumstances was sufficient evidence of ownership. To say that mere possession proves a prima facie case of ownership is to substitute presumption where proof is required. Indeed, possession may under some circumstances afford a presumption against ownership; for example, the possession of stolen goods makes a prima facie case of larceny against the possessor. Possession may or may not afford evidence of ownership; certainly a presumption of ownership does not arise in the absence of facts and circumstances tending to show that it resulted from transfer of title. The circumstances in Mason v. Willhite were such that the claimant's possession could only have been obtained by delivery from the donor under conditions indicating an intentional transfer of the title. That mere possession of promissory notes does not create a presumption of ownership is illustrated, and was so held by this court in Allen v. Hays, 139 Tenn. 56, 201 S.W. 135. In that case one of the executors had collected a note which belonged to the deceased, and he declined to distribute among the distributees of the estate, because of his claim that the testator had made a gift thereof to his son. A contention was made that the possession of the fund raised a presumption of ownership. This contention the court denied, and in doing so quoted with approval the principles announced in cases arising in other states, to this effect:

"Title is presumed to continue until it is shown to have been divested, and we take it to be the rule that the mere possession of such paper, without indorsement, where there is no evidence of a consideration paid, and no evidence of delivery except possession, is an insufficient showing of the passing of title of the defendant. * * * The mere possession of a negotiable promissory note or any negotiable instrument, the title to which passes under the law merchant by indorsement and delivery, is not prima facie evidence of ownership as against the payee. The absence of the indicia of ownership is wanting, and mere possession does not supply this." Roy v. Duff, 170 Iowa, 319, 152 N.W. 606.

Also from Gano v. McCarthy, 79 Ky. 409, as follows:

"The mere fact of possession, upon such a state of facts, was not prima facie evidence of ownership. There might have been such a gift of the note, or a verbal sale of it, by the intestate to his niece, as to prevent a recovery by his personal representative, is not doubted; but such a defense must be sustained by the proof, and the law will not presume the existence of such facts from the mere possession of the note by the claimant as will deprive the owner of [his] title. The presumption is that title and right of possession is with the original owner, and the burden is on the claimant to show that his possession is rightful. * * * It would be an easy matter to deprive the owner of his property, if in such a case he were required not only to make his action good by showing title in himself, but, must, in some other manner than the exhibition of his title, negative the idea that the possession of the defendant is wrongful."

The reason of the rule is still stronger in a case where there was opportunity for the claimant to come into possession of the note, especially during the last illness of the alleged donor. The application of this rule, it was said, did not necessarily impute wrong to the possessor, the purpose being to preserve property rights in cases where opportunity is afforded for obtaining wrong possession where a dead person is involved.

From these reasons we conclude that no presumption arises from possession of this note by Mrs. Rimmer after the death of Walker to aid her in making out the truthfulness of her claim.

Since however, the fact of possession is a matter to be considered along with other facts and circumstances, we must determine what effect the possession of the note by Mrs. Rimmer shall have in this case. Walker lived in the same home with the defendant; he kept some of his belongings, at least, in his room. There were some valuable papers found in a satchel in his room. It appears that Walker had some valuable papers in a bank in Oklahoma where he had lived and transacted business, but there is no satisfactory evidence that this particular paper was ever kept there. It also appears that he kept some...