Gano v. McCarthy's Adm'r

• Decision Date: 11 June 1881
• Citation: 3 Ky.L.Rptr. 32,79 Ky. 409
• Parties: Gano v. McCarthy's adm'r.
• Court: Kentucky Court of Appeals

79 Ky. 409

3 Ky.L.Rptr. 32

Gano v. McCarthy's adm'r.

Court of Appeals of Kentucky.

June 11, 1881

1. The mere possession of a promissory note is not prima facie evidence of ownership as against the payee or his personal representative. The burden of proof is on the claimant to show that his possession is rightful.

2. That the party in possession of the note said at the time she assigned it that she had acquired it as a gift from the payee was not competent to establish the gift, nor as a part of the res gestæ .

APPEAL FROM FAYETTE CIRCUIT COURT.

MORTON & PARKER FOR APPELLANT.

1. Possession of a note is prima facie evidence of ownership, and a party claiming adversely to the holder must show that the possession is wrongful. (Carlyle & Offutt v. Patterson, 3 Bibb, 33; Speed's ex'r v Nelson's ex'r, 8 B. M., 502; Crosthwaite v Mizener, MS. Op., Dec. 18, 1877.)

2. The statement made to appellant by the holder of the note, at the time she assigned it to him, that she had acquired it as a gift from her uncle, was competent as a part of the res gestæ . (May v. Jones, 4 Litt., 24; Shackleford v. Smith, 5 Dana, 240.)

3. As there are facts in the case conducing to prove title in appellant's assignor, the court erred in giving a peremptory instruction for appellee.

BRECKINRIDGE & SHELBY FOR APPELLEE.

1. While the mere possession of commercial paper is prima facie evidence of ownership, such is not the rule with regard to non-negotiable instruments. The holder must show that he is rightfully in possession. (1 Daniel on Negotiable Instruments. secs. 741 and 812; Dorn v. Parsons, 56 Mo. 601; Central Bank v. Hammett, 50 N.Y. 159; Story on Bills of Exchange, secs. 415-16: Williams on Personal Property, side page 395; Brown v. Spofford, 95 U. S (5 Otto), 478; Bradford v. Ross, 3 Bibb, 238; Bell v. Morehead, 3 A. K. Mar., 153; Crosthwaite v. Mizener, 13 Bush, 543; Welch v. Lindo, 7 Cranch, 159.)

2. If there was any proof of title in appellant's assignor, it was only an equitable title, upon which appellant could not recover in an action at law. (Daniel on Negotiable Instruments, secs. 664 and 741; Garnett v. Gault, 13 B. M., 380.)

OPINION

PRYOR JUDGE:

In the year 1872 Samuel Devore executed and delivered his note to one Florence McCarthy for $300. McCarthy died in the year 1875, and the payor, Devore, died shortly after. Mary Straughn, a niece of the intestate McCarthy, after the latter's death, assigned this note for a valuable consideration to the appellant, R. M. Gano.

The administrator of McCarthy, Tarlton, instituted this action against the administrator of Devore, seeking to recover the amount of the debt. Devore's administrator pleaded that the estate of his intestate was owing the note, and as the administrator, he was ready and willing to pay the debt, and tendered the money into court, and further alleged that the appellant, R. M. Gano, was in possession of the note, and claimed to be the owner. He asked that the parties be compelled to interplead, and their rights determined.

Gano came into the case by his petition, in which it is alleged that the note was executed by Devore to plaintiff's intestate, and by the latter, some time prior to his death assigned to his niece, Mary Straughn, for a valuable consideration, or delivered as a voluntary gift, and that Mary Straughn, for its full value, transferred the note to him.

The issues being made and proof heard, the court instructed the jury to find for the plaintiff, and this is assigned as the principal ground for a reversal.

There was no assignment of the note by the appellee's intestate to his niece, and the only question is, was the possession of the note under the circumstances such evidence of ownership as required the jury to pass on the issue made? We think not.

Here was an issue directly made as to the title and ownership of the note by the personal representative of the party to whom the note was executed and delivered. It is conceded by the pleadings and shown by the proof that the note was executed and delivered to the plaintiff's intestate, and his original title and possession being unquestioned, the burden was on the party claiming the note to show the manner in which his assignor secured title, and the mere fact of possession upon such a state of facts was not prima facie evidence of ownership.

That 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 title. The presumption is, that the title and right to the possession is with the original owner, and the burden is on the claimant to show that his possession is rightful. The party admitted to be the original owner is not required to show, in addition to the title and possession in himself, that this possession he has been deprived of by the unlawful act of the defendant; but the explanation as to how the claimant derived title and possession is with the latter.

If the recognized rule of law applicable to the ownership of personal property is to be applied to a due-bill or noncommercial paper in the possession of the party claiming...