Robertson v. Dunn
| Decision Date | 31 October 1882 |
| Parties | JOHN J. ROBERTSON, Adm'r, v. W. A. DUNN, Adm'r. |
| Court | North Carolina Supreme Court |
CIVIL ACTION tried at Spring Term, 1882, of HALIFAX Superior Court, before Bennett, J.
The following facts were agreed upon:
1. On the 10th day of December, 1862, one David C. Camp covenanted under his hand and seal to pay Ann Camp, the intestate of the plaintiff, the sum of seven hundred and ninety-five dollars with interest from date in manner and form as follows:
“With interest from date I promise to pay Mrs. Ann Camp, or order, the sum of seven hundred and ninety-five dollars for value received, this December 10th, 1862.” (Signed and sealed by D. C. Camp.) And the same is credited with fifty dollars, Oct. 12th 1863.
2. That J. O. Camp, the intestate of the defendant, brought suit on said note in his own name on the 6th day of April, 1874, said note being in his possession and produced by him at the trial, and recovered judgment thereon at special term of the court held on the 7th day of December, 1874, against the administrator of D. C. Camp, and received from him $1059.75 on the 14th day of January, 1875, and the residue,$280.46, on the 5th day of March, 1877.
3. The said note was never indorsed to the said J. O. Camp.
4. That J. O. Camp, the intestate of the defendant, died in June, 1879, and the defendant qualified as his administrator on the 6th of August of said year.
5. That Ann Camp, the intestate of the plaintiff, died on the 12th day of September, 1879, and the plaintiff qualified as her administrator on the 1st day of May, 1880.
6. That on the 18th day of May, 1880, the plaintiff demanded of the defendant payment of the aforesaid amounts collected by his intestate as aforesaid, but the defendant refused.
7. That this action was begun the 24th day of May, 1880.
There was judgment for the defendant and the plaintiff appealed.
Mr. Thos. N. Hill, for plaintiff .
Mr. J. B. Batchelor, for defendant .
There are only two questions presented by the record. First, has the plaintiff a right of action against the defendant; and secondly, is his right of action barred by the statute of limitations?
The note in suit was never indorsed. The defendant's intestate was the holder, and the plaintiff's intestate had the legal title. The defendant's intestate unquestionably had the right to bring the action upon the note as holder and recover judgment thereon, for when the holder produces the note sued on, and offers it in evidence, it raises a presumption of fact that he is the owner, and unless rebutted by the defendant entitles him to judgment. Pugh v. Grant, 86 N. C., 39; Jackson v. Love, 82 N. C., 405, and cases there cited.
But it is a presumption which is only evidence against the defendant in an action upon the note, and, as a mere presumption, cannot avail the holder in an action brought against him by the legal owner.
When a note is sued on and reduced to judgment in the name of the holder, it is such a conversion in the absence of any proof as to his right of possession, as will give the legal owner an action of trover against him, and the action would be barred after three years from the conversion. But the legal owner, if he choses to do so, may waive the tort and bring an action in nature of assumpsit for money had and received to his use, where the money has been collected, and the statute in that case bars the action after three years from the time of the receipt of the money, or a demand therefor, according to the relation of the parties.
But it is contended by the defendant's counsel, that while the action of trover is barred after three years from the conversion, the action of assumpsit being in this case for the same cause of action, must be subject to the same limitation. This position of the learned counsel is not supported by the authorities. For it is held that an action of assumpsit may not be barred by the statute, when to an action for a tort upon the same demand the statute may be pleaded. When there has been a tortious taking of his property, the injured party may bring trespass or trover, or he may waive both and bring assumpsit for the...
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... ... § 441 applies and the right of ... action is barred at the expiration of three years after such ... breach, repudiation or disavowal. Robertson v. Dunn, ... 87 N.C. 191; Edwards v. University, 21 N.C. 325, 30 ... Am.Dec. 170; Dunn v. Dunn, 137 N.C. 533, 50 S.E ... 212; County Board v ... ...
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