Jones v. Waldroup
| Decision Date | 28 February 1940 |
| Docket Number | 24. |
| Citation | 7 S.E.2d 366,217 N.C. 178 |
| Parties | JONES v. WALDROUP. |
| Court | North Carolina Supreme Court |
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G. A. Jones, of Franklin, B. C. Jones, of Bryson City, and Gray & Christopher, of Murphy, for plaintiff, appellant.
Edwards & Leatherwood, of Bryson City, for defendant, appellee.
A careful scrutiny of the evidence to which plaintiff objected fails to disclose reversible error.
The two more serious challenges to the introduction of that evidence are directed to the testimony of E. H. Corpening and Mrs. Maude Hunter, who testified as to conversations had with Dr. Waldroup with reference to the stock now sought to be recovered from this defendant. In view of the construction which the Court must give to the action of Dr. Waldroup in causing the transfer of stock in some of the several associations concerned and of the paper writing admitted by both sides to have been executed by Dr. Waldroup transferring stock to himself and wife jointly, it seems clear to us that the statements of Dr. Waldroup disparaging to his own exclusive ownership are strongly corrobative of the defendant's position with regard to these disputed transactions and are relevant and admissible. Wilson v. Williams, 215 N.C. 407, 2 S.E.2d 19; Wilder v. Medlin, 215 N.C. 542, 2 S.E.2d 549.
It has also been suggested that Mrs. Waldroup was incompetent to testify as to the possession of the several certificates of stock and of the note in controversy as being excluded under the provisions of C.S. § 1795 as an interested party. This is upon the theory that such statement implied a delivery of the stock to the witness by Dr. Waldroup himself, such delivery constituting a personal transaction between the two having an important bearing on the transfer of title.
Although there are authorities supporting such a position, (see 70 C.J. 313), the better opinion is clearly in favor of the competency of such evidence. Citation supra. McComb v. McComb, 204 Wis. 293, 234 N.W. 707. But it is not an open question in this State. In Thompson v. Olney, 96 N.C. 9, 13, 1 S.E. 620, 621, where the issue was between the defendant and the administrator of the deceased person to whom an unendorsed note in defendant's possession is payable, and where, of course, the question of delivery was paramount, defendant was permitted to testify that the note was in her possession at the commencement of the action. Passing on this the Court said: "It cannot be seen that the only source of the witness' information was 'a personal transaction [or communication] between her and the deceased."' In the case at bar the fact of possession implies, perhaps even more strongly, that the possession had been derived from the corporations who issued the stock, and as to the note, from the maker of it, since it was payable to either plaintiff's intestate or defendant.
The question, however, seems to be academic in the case at bar, since the fact of possession is not in dispute. The plaintiff brings an action for the recovery of the specific items, and in his complaint alleges the possession of the defendant. The inference of delivery of the certificates of stock and note by Dr. Waldroup is as strongly raised by the admitted facts as it would be by the testimony of the witness alone.
Under the Olney case the testimony must be regarded as an independent fact. See comparison of cases in Wilder v. Medlin, supra; Sutton v. Wells, 175 N.C. 1, 3, 94 S.E. 688; In re Will of Saunders, 177 N.C. 156, 98 S.E. 378.
There are exceptions to the charge, relating to the burden of proof, with which we cannot deal adequately without attempting to remove from the case some misapprehension of law respecting the theory on which the case was tried.
It was understood by the plaintiff, and the theory adopted by the Court, without much protest on the part of the defendant, that the paper writing in which Dr. Waldroup purported to convey the Blue Ridge stock to himself and wife; with the rights of survivorship, as well as his conduct in requiring that new issues of stock in the other building and loan companies be made to himself and wife, with an indication that he intended survivorship, had no other effect than to create an agency in Mrs. Waldroup, terminated by the preceding death of her husband. This view is not consonant with the facts, or with a proper interpretation of either the paper writing referred to, or the transaction by which Waldroup caused the new issues of stock to be made to himself and wife; and that view is not supported by the authorities cited in plaintiff's brief.
C.S. § 1735 abolished survivorship in joint tenancy, with an exception as to partners, so that the surviving partner might apply the partnership assets to the partnership debts. After this has been accomplished, the remainder goes, under the Statute of Distributions, to those entitled.
But this statute abolished survivorship only where it follows as a legal incident to an existing joint tenancy. It did not, and does not, prevent persons from making agreements as to personalty such as to make the future rights of the parties depend upon the fact of survivorship. Taylor v. Smith, 116 N.C. 531, 535, 21 S.E. 202. Since there is nothing in public policy. to prevent it, the right should be upheld.
Defendant cites in the brief Jones v. Fullbright, 197 N.C. 274, 148 S.E. 229, and Nannie v. Pollard, 205 N.C. 362, 171 S.E. 341, both of which cases concern a joint checking account at the bank; and there is nothing in the evidence in those cases to indicate that the ownership of any part of the account had been transferred from the husband. Such an account might run from one cent to millions, and in its fluctuation the original items of deposit may have disappeared in the process of checking many items. The cases are not analogous to the one at bar. The other cases cited--Graham v. Graham's Adm'rs, 9 N.C. 322; Morrow v. Williams, 14 N.C. 263; Dail v. Jones, 85 N.C. 221; Outlaw v. Taylor, 168 N.C. 511, 84 S.E. 811; Speight v. Speight, 208 N.C. 132, 179 S.E. 461; Nixon v. Nixon, 215 N.C. 377, 1 S.E.2d 828-- all relate to attempts totidem verbis to reserve a life estate in personalty with remainder over. This has nothing to do with a joint tenancy in personalty with survivorship created by contract, either bilateral agreement or gift. Taylor v. Smith, supra.
We construe the conveyance, admittedly made by Dr. Waldroup, with reference to the Blue Ridge stock, as creating a common ownership in the property which is its subject until one of them should die, with the right of survivorship.
As to the other corporations involved, just as in all corporations, the title of the stock might be by assignment, without reference to registry on the books of the company--which is good inter partes-- following which the legal title might be perfected by such registry and the delivery of the certificates. Havens v. Bank, 132 N.C. 214, 43 S.E. 639, 95 Am.St.Rep. 627; Cox v. Dowd, 133 N.C. 537, 45 S.E. 846. But this is by no means an exclusive method of transfer. It may be done by direction of the holder and owner of the stock upon the books of the company which, followed by delivery, or a surrender of the dominion of the certificates to the transferee, would make the title complete. C.S. § 1164; Mitchell v. Aulander Realty Co., 169 N.C. 516, 86 S.E. 358; Bleakley v. Candler, 169 N.C. 16, 84 S.E. 1039, Ann. Cas.1917A, 425; Richardson v. Emmett, 61 A.D. 205, 70 N.Y.S. 546; Id., 170 N.Y. 412, 63 N.E. 440; Chicago Title & Trust Co. v. Ward, 332 Ill. 126, 163 N.E. 319.
The position of the defendant here is even stronger, because Waldroup required the...
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