Durein v. Moeser
Citation | 13 P. 797,36 Kan. 441 |
Parties | FRANK DUREIN, et al., v. ELIZA MOESER, as Administratrix of the Estate of Henry Moeser, deceased |
Decision Date | 06 May 1887 |
Court | United States State Supreme Court of Kansas |
Error from Shawnee District Court.
MAY 4 1885, Eliza Moeser, as administratrix of the estate of Henry Moeser, recovered a judgment for $ 758.30 and costs against defendants, Durein and Kreipe. They bring the case here. The material facts are stated in the opinion.
Judgment affirmed.
J. M Sheafor, and Hazen & Isenhart, for plaintiff in error.
Chesney & Carey, for defendant in error.
OPINION
In May, 1876, Henry Moeser, the owner of lots 104, 106 and 108, on Harrison street, died, intestate, in the city of Topeka. A short time after his death, Eliza Moeser, his widow, was appointed administratrix of his estate. In April, 1877, Eliza Moeser left the city of Topeka and moved to Chicago, Ill. Prior to her going away she executed a mortgage upon said lots for $ 1,100 to Philip Moeser. On April 1, 1879, she sold said lots, through her brother-in-law, Ed. Moeser, to Margaret J. Norton, for $ 3,000, and received in payment therefor $ 500 cash, and five notes, of $ 500 each, executed by Margaret J. Norton and L. Norton, and due in six months, and one, two, three and four years, respectively, secured by a mortgage upon said premises, with interest at ten per cent., payable annually. These notes were numbered 1, 2, 3, 4 and 5, in the order in which they became due. On May 29, 1879, note number 3 was indorsed to Durein and Kreipe. On August 30, 1879, note number 4 was indorsed to Durein and Kreipe. In May, 1879, note number 5 was left with Judge Carey, then probate judge, by an arrangement between Eliza Moeser and Philip Moeser. On or about the 8th of January, 1880, note number 5 was turned over by Judge Carey to Fred. Fritsche. Durein and Kreipe claim to have purchased this note, and were in possession of the same in March, 1884, and collected interest thereon from the makers thereof.
The controversy in this case is over the note No. 5, or rather the proceeds of the note, as the Nortons have paid the amount thereof into the court, and by the agreement of the parties to this action the money is to abide the result of this litigation. Mrs. Eliza Moeser, as administratrix and the payee, claims the proceeds of the note and all the interest collected by Durein and Kreipe. Durein and Kreipe claim the proceeds of the note and the interest collected by them, as owners of the note through a purchase, which they allege they made from Fred. Fritsche, who, they claim, was the authorized agent of Mrs. Moeser. Note No. 5 was payable to the order of Eliza Moeser, administratrix, but was never indorsed by Mrs. Moeser, the payee, or by any one for her.
The jury made the following findings of fact:
The contention on the part of Kreipe and Durein is, that the possession of the promissory note is prima facie evidence of ownership, and therefore that the instruction given is erroneous and prejudicial to them. The case of Eggan v. Briggs, 23 Kan. 710, cited, is very different from the case now...
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Shepard v. Hanson
...note was unindorsed, and the legal presumption that it was owned by the payee controls. Tuttle v. Becker, 47 Iowa, 486;Durien v. Moeser, 36 Kan. 441, 13 Pac. 797;Gano v. McCarthy's Adm'r, 79 Ky. 409. See, also, Shepard v. Hanson, 9 N. D. 249, 83 N. W. 20, and authorities cited. This presump......
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Reynolds v. The National Bank of Commerce
...... claim of ownership himself. But possession of such a note is. not evidence of ownership against the payee (Durein v. Moeser, Adm'x, 36 Kan. 441, 13 P. 797; Note, 50 L. R. A., n. s., 588; 3 R. C. L. 981, 982, note 10). As against. the maker it may be presumed ......