Rogers v. Clements

• Decision Date: 28 February 1885
• Citation: Rogers v. Clements, 92 N.C. 81 (N.C. 1885)
• Court: North Carolina Supreme Court
• Parties: M. A. ROGERS, Ex'trx, v. A. K. CLEMENTS, et al.

92 N.C. 81

M. A. ROGERS, Ex'trx,

v.A. K. CLEMENTS, et al.

Supreme Court of North Carolina.

February Term, 1885.

This was a CIVIL ACTION, tried before Avery, Judge, and a jury, at March Special Term, 1884, of WAKE Superior Court.

The plaintiff in her complaint alleged that the defendants, on the 28th day of October, A. D., 1857, executed to one G. H. Alford their note, under seal, for the sum of $900, payable one day after date; that said note was afterwards endorsed by said Alford for value to Mary A. Rogers, the testatrix of the plaintiff, and that on the 15th day of October, 1859, the interest then due on said note had been paid, and also $193.80 of the principal, and that no other payments had been made thereon. The defendant W. W. Clements filed no answer, and the defendant A. K. Clements filed an answer, in which he denied the execution of said note, alleged payment of the same, and also a release of said note by the plaintiffs, Maulsey A. Rogers, Pamelia Collins, and Nancy B. Goodwin, who, with the said A. K. Clements, were legatees under the will of the plaintiff's testatrix, and as such solely entitled to the proceeds of said note at the date of said release, and that said proceeds were not necessary for the payment of any debts or charges against the estate of said testatrix, or for any other purpose connected with said estate.

One H. C. Olive was introduced as a witness for plaintiff, and plaintiff proposed to show by him, in order to rebut the presumption of payment by W. W. Clements, that the said W. W. Clements, in the absence of the defendant A. K. Clements, declared that he had not paid the note sued on. The defendant A. K. Clements objected. The plaintiff insisted that the onus was on her to rebut the presumption of payment as to both defendants, in order to recover of the defendant A. K. Clements, and the declaration was admissible to show that W. W. Clements did not pay. The objection was overruled, and defendant excepted.

The witness then testified that in the latter part of the year 1881 or 1882, said W. W. Clements told witness, in the absence of A. K. Clements, that said note had not been paid by him. The said A. K. Clements further objected, because it appeared that said W. W. Clements made said statement after the presumption of payment had arisen. Objection overruled and defendant excepted.

Witness, upon cross-examination, testified that by the will of Mary A. Rogers, a small tract of land was devised to a colored woman, and that all the balance of the estate, both real and personal, was devised one-fourth each to J. W. Rogers, A. K. Clements, Nancy B. Goodwin, absolutely, and the remaining fourth to Pamelia Collins for life, and after her death to her children. That said Pamelia Collins died about the middle of August, 1881, after the death of Mary Ann and John W. Rogers, leaving a number of children, who are not parties to this action. That said John W. Rogers died, leaving a will which has been duly admitted to probate, in which the said Maulsey Ann Rogers is executrix and sole legatee. That the estate of Mary Ann Rogers was solvent, and perfectly good for all liabilities outside of this note sued on, and of the devise to the colored woman above named, and that said liabilities, so far as they had been ascertained, could be satisfied out of the personal property of the estate without resorting to the note sued on.

The defendant A. K. Clements then offered to prove the execution by the said Maulsey A. Rogers, Pamelia Collins and Nancy B. Goodwin, of the following words endorsed on the back of the note sued on: “We, the legatees of Mary A. Rogers, deceased, hereby agree to release A. K. Clements from the payment of the within note, or any part thereof. This September 22, 1880. Witness our hands and seals.

+------------------------------+
                ¦MAULSEY A. ROGERS, ¦( Seal  ).¦
                +-------------------+----------¦
                ¦PAMELIA COLLINS,   ¦( Seal  ).¦
                +-------------------+----------¦
                ¦NANCY B. GOODWIN,  ¦( Seal  ).¦
                +------------------------------+
                

Test: H. C. OLIVE.

The plaintiff objected to the introduction of this evidence, and it was excluded by His Honor, upon grounds not material to be stated.

The defendant A. K. Clements, at the close of the evidence, asked the Court to instruct the jury:

1st. If the presumption of payment is not rebutted as to W. W. Clements, the jury must find the issue upon the question of payment in favor of the defendant.

2nd. There is no evidence rebutting the presumption of payment by the said W. W. Clements.

His Honor gave the first and refused the second instruction, and the defendant excepted.

The record does not show that any issues were submitted to the jury, but states that the jury find all issues in favor of the plaintiff.

There was a judgment for the plaintiff,...