Thompson v. Onley

• Citation: 96 N.C. 9,1 S.E. 620
• Court: North Carolina Supreme Court
• Decision Date: 16 March 1887
• Parties: THOMPSON v. ONLEY.

96 N.C. 9

1 S.E. 620

THOMPSON

v.ONLEY.

Supreme Court of North Carolina.

March 16, 1887.

Appeal from superior court, Pasquotank county.

John Gatting and W. D. Pruden, for plaintiff.

Grandy & Aydlett, for defendant.

SMITH, C. J.

The present action is prosecuted by the plaintiff, as administrator of Joshua Lowe, to recover possession of a note under seal, executed by William J. Harrell to the intestate on January 14, 1882, and due, with interest from January 1, 1881, on January 1, 1883, in the sum of $400. The note was given, as appears on its face, to secure the residue of the purchase money for a tract of land bought of the intestate; and the defendant, being in possession and claiming it as her property, refuses to surrender it on the plaintiff's demand. During the pendency of the proceeding, the note was, by an order of the court, taken from the defendant, and placed in custody of the clerk, to await the result of the trial.

By consent the following issue was submitted to the jury. Is the plaintiff the owner of, and entitled to the possession of, the note or bond in controversy? To this inquiry the response was in the negative.

In support of his claim, the plaintiff took the note from the office, and read it to the jury. It was unindorsed. This was the only evidence offered by him.

The defendant, examined on her own behalf, testified that she had seen the note before; that it was in her possession at the commencement of the action, and so remained until delivered up by command of the court; and that it was her own property.

The court instructed the jury that, the note or bond being payable to Lowe, the plaintiff's intestate, and not indorsed by him, it was prima facie the property of the plaintiff, nothing else appearing, and that the defendant's possession does not raise a presumption that the note or bond is the property of the defendant. The court further charged the jury that the defendant testified that the note or bond was in her possession at the institution of this action, and up to the time it was taken from her, and impounded in the clerk's office by order of this court, and that she is the owner of said note or bond, and that the same is her property. The court charged the jury it was simply a question of ownership; that, to give title to a note or bond, an indorsement or assignment is not necessary; and that it is a matter of fact for the jury to decide; and that, if the jury believe the testimony of the defendant, ...