Boone v. Peebles

• Decision Date: 07 June 1900
• Citation: 126 N.C. 824,36 S.E. 193
• Court: North Carolina Supreme Court
• Parties: BOONE et al. v. PEEBLES.

126 N.C. 824

36 S.E. 193

BOONE et al.

v.PEEBLES.

Supreme Court of North Carolina.

June 7, 1900.

APPEAL—COMPETENCY OF EVIDENCE—DIVIDED COURT—AFFIRMANCE—PAYMENT—STATUTORY PRESUMPTION—DEFENSE.

1. Where evidence was admitted as competent by the trial court, and the members of the court sitting on appeal are equally divided on the question of its competency, the opinion of the trial court must prevail.

2. A defense based on statutory presumptions of payment or abandonment cannot be maintained as to rents alleged to have been received after Code 1868 went into effect, which Code contains no provision as to presumption of payment and abandonment.

Appeal from superior court, Northampton county; Norwood, Judge.

Action by J. W. Boone and others against R. M. Peebles, administratrix of J. T. Peebles. Prom a judgment in favor of plaintiffs, defendant appeals. Affirmed.

R. B. Peebles, for appellant.

T. N. Hill, T. W. Mason, and P. D. Winston, for appellees.

FURCHES, J. This is an action for money received by defendant's intestate from the rent of lands belonging to plaintiffs and wrongfully appropriated to his own use. The defense relied on what seem to be the pleas of presumptions and abandonment. In the courts of the trial, J. W. Boone, a party to the action, was allowed to testify as to his own age and the ages of the other plaintiffs, which knowledge he said he got from the family Bible; that this Bible was in the possession of his sister; and that he had no other knowledge as to the dates of their births. This question and answer were objected to by defendant, objection overruled, evidence admitted, and defendant excepted.

Owing to the relationship of Justice CLARK to one of the plaintiffs, he did not sit in this case; and, the other members of the court being equally divided upon the competency of this evidence, the opinion of the court below must prevail, and the evidence held to be competent. Puryear v. Lynch, 121 N. C. 255, 28 N. E. 210; Town of Durham v. Richmond & D. R. Co., 113 N. C. 240, 18 S. E. 208.

We do not think the defendant can sustain her defense upon the pleas of the statute of presumption and abandonment. The Code went into effect in August, 1868, taking the place of the Revised Code, and the Code now contains no statute of presumptions; and it appears that no part of the rents claimed were received until after 1868, when the Code went into operation. The rights of infants and femes covert are saved under chapter 65, §§ 5, 9, Rev. Code, and also...