Kiff v. Weaver

• Decision Date: 28 February 1886
• Citation: 94 N.C. 274,55 Am.Rep. 601
• Parties: WM. KIFF, Administrator, v. SAMUEL WEAVER.
• Court: North Carolina Supreme Court

94 N.C. 274

55 Am.Rep. 601

WM. KIFF, Administrator,

v.SAMUEL WEAVER.

Supreme Court of North Carolina.

February Term, 1886.

This was a CIVIL ACTION tried before Shepherd, Judge, and a jury, at the Fall Term, 1885, of Hertford Superior Court.

The action was brought by the plaintiff as administrator of James Kiff, deceased, to recover from the defendant, a number of notes, and mortgages executed to secure them, payable to James Kiff, the plaintiff's intestate, as described in the complaint, which it is alleged the defendant unlawfully withholds from the plaintiff. The defendant admitted that he held the possession of the bonds and mortgages, but denied that he held them unlawfully.

For a further defence, he pleaded as a counter-claim, that he was then, and was at the commencement of the action, the rightful owner and in possession of the said bonds, notes and mortgages. That James Kiff, the intestate, during his lifetime and in his last illness and in contemplation of his death, and but a short time before his death, gave and delivered to the defendant, said notes, bonds and mortgages, to and for his sole use and benefit.

The following issue was submitted to the jury:

“Is the plaintiff William Kiff, administrator of James Kiff, the owner and entitled to the possession of the notes, bonds and mortgages mentioned in the pleadings?”

It was admitted the bonds, &c., in controversy before the alleged gift, were the property of James Kiff. There was evidence tending to show that James Kiff died on the 4th of November, 1882, that he had been ill for several days; that on Sunday preceding his death, he had despaired of all hope of recovery; that in the presence of several witnesses, on said Sunday, he handed the bonds in controversy, (said bonds were not endorsed and were payable to order,) to the defendant, his natural son, and told him he gave him the same, to take and collect them, and that he might have the money and bonds in case he died; that ever since the delivery of said bonds, the defendant has been in possession of them, claiming the same as his own, by virtue of said gift; that James Kiff died of said illness on the following Tuesday.

There was also testimony tending to show the circumstances of James Kiff; that he had two sisters, and other natural children; that at the time of the alleged gift he was indebted, and that he did not reserve sufficient property to pay such indebtedness.

No instructions were prayed for. Among other things, the Court charged the jury, that defendant must prove the gift by a preponderance of evidence, otherwise he was not entitled to a verdict. The Court also charged the jury, that they might consider the evidence of insolvency, along with the other circumstances, on the question as to whether the gift, as alleged by the defendant, was in fact made, but that if they found in favor of such gift, that the defendant would in this action be entitled to a verdict, notwithstanding the insolvency of the intestate, the Court holding that the gift, if made, related to the time of the delivery of the bonds, and that the administrator was estopped to attack it as fraudulent. The plaintiff excepted to this part of the charge.

The jury responded in the negative to the issue submitted, and the plaintiff moved for a new trial; (1) Because of the charge of the Court as to the degree of proof required of the defendant, and, (2) Because of the charge of the Court as to the estoppel of plaintiff.

The motion was over-ruled and judgment rendered for the defendant, from which plaintiff appealed to Supreme Court.

Mr. B. B. Winborne, for the plaintiff .

Mr. David A. Barnes and J. B. Batchelor, for the defendant .

ASHE, J. (after stating the facts).

A donatio causa mortis, in Nicholas v. Adams, 2 Whar. 17, is defined by ch. Justice GIBSON, to be “a conditional gift, depending on the contingency of expected death, and that it was defeasible by revocation or delivery from the peril.” To constitute a donatio mortis causa the circumstances must be such, as to show that the donor intended the gift to take effect, if he should die shortly afterwards, but that if he should recover, the thing should be restored to him. Overton v. Sawyer, 7 Jones, 6.

From this definition it results, that to constitute a donatio mortis causa, there must be three attributes. 1st. The gift must be with the view to the donor's death. 2nd. It must be conditioned to take effect only on the death of the donor by his existing disorder; and 3rd, there must be a delivery of the subject of donation--1 Williams on Ex. p. 686.

The donation in this case, possessed all the qualities of a donatio causa mortis. The donor in his last illness, on the Sunday previous to his death on the Tuesday following, while despairing of all hope of recovery, handed the bonds and mortgages in controversy, in the presence of several witnesses, to the defendant, and told him that “he gave him the same, to take and collect them, and that he might have the money and bonds in case he died,” and that the defendant then took the bonds and mortgages, and has had possession of them ever since.

The plaintiff contended in this Court, that the counter-claim could not be maintained, because the title to bonds, bills of exchange and promissory notes, could only be passed by endorsement or assignment, and could not be transferred by mere delivery, so that the delivery of the bonds did not vest the legal title in the defendant, and could not constitute a good donatio causa mortis, and that the counter-claim was therefore defective, because it did not state facts sufficient to constitute a cause of action, and in support of his position, he relied upon the case of Overton v. Sawyer, 7 Jones, 6, where it was held, that bonds or sealed notes, given by delivery as a donatio causa mortis, may be recovered at law in an action of trover by the personal representative of the donor, and he also relied upon the cases of Fairly v. McLean, 11 Ired. 158, and Brickhouse v. Brickhouse, Ibid., 404. The two latter named cases, were actions of trover for the conversion of unindorsed promissory notes, the legal title to which could not, at that time, be transferred, except by indorsement, and the actions were at law.

But since that case was decided, a change has come over our system of legal procedure. Then an action had to be brought upon an unnegotiable or unindorsed bond, in the name of the assignor, because he was held by the assignment to acquire only an equitable interest, which could not be enforced in a court of law, yet even in that case, the court of law so far recognized the interest of the assignee, as to protect it against the acts of the assignor. Long v. Baker, 2 Hay., 128 (191), and Hoke v. Carter, 12 Ired., 324. But now, under the new system, the action on such an instrument, must be brought by the real party in interest. The Code, §177.

The construction put upon this section is, that the assignee of a bond or note not endorsed, is the proper person to maintain the action in his own name, because he is the real party in interest. Andrews v. McDaniel, 68 N. C., 385; Jackson v. Love, 82 N. C., 404; Bank v. Bynum, 84 N. C., 24; and that the possession of an unindorsed negotiable note payable, to bearer, raises the presumption that the person producing it on the trial is the real and rightful owner. Jackson v. Love, supra, and Pate v. Brown, 85 N. C., 166.

It is immaterial whether the action brought by the plaintiff is legal or equitable, for under the present system, the distinction in actions at law and suits in equity, and the forms of all such actions are abolished, and there is but one form of action. The Code, §133.

The complaint or counter-claim, which is in the nature of a cross action, must set forth the cause of action in a plain and concise statement of facts--The Code, §233, Moore v. Hobbs, 77 N. C., 65--and then the Court will give such relief as is consistent with the case made by the complaint and embraced within the issue. The Code, §425; Knight v. Houghtalling, 85 N. C., 17; Oates v. Kendall, 67 N. C., 241.

This action then, according to the statement of the facts set forth therein, may be either in the nature of detinue, or a bill in equity for the delivery of the bonds and mortgages, but as the defendant, as assignee by parol, has set up a counter-claim of the alleged donatio causa mortis of the bonds and mortgages, it presents the question, whether the transfer of an unindorsed bond, creating only an equitable title in the donee, is valid as a donatio causa mortis.

That the defendant's right of action, by his counter-claim, upon the unindorsed bond, is still an equitable claim notwithstanding--The Code, § 133--see 1 Estee on Pleading, 122. In the case of Overton v. Sawyer, cited above, the...