Johnson v. . Gooch

*67 Faiboloth, C. J.: The defendants, W. W. and E. B. Peebles, claim the surplus money in the hands of defendant Gooch as administrator de bonis non, c. t. a. of Virginia A. Johnson by an alleged sale of the land devised in said Virginia’s last will and testament, under an execution against her husband, James Johnson. The plaintiffs claim said surplus money which arose from a sale of said devised lands by a proper petition to raise assets to pay debts, and they claim it as devisees of Virginia A. Johnson in whose will are the following clauses: “ I devise and bequeath my whole estate to Catharine Johnson (the plaintiff), my sister-in-law, in trust to hold and preserve the same from all liability to the debts of my husband, James Johnson, which were contracted by him prior to our intermarriage.” Sixthly: “In case the said James Johnson should fully pay off or discharge by any means all and every of the debts contracted by him, prior to my marriage with him, then and in that case, I declare that he shall take and receive all my aforesaid estate, free and discharged from all the trusts in the premises declared, and shall hold the same absolutely for his own sole use and benefit.” James Johnson died March 16, 1876, and the note of said Johnson was dated July 31,1858, which day was prior to said intermarriage. The important question presented is whether James Johnson fully paid or by any means discharged said note during his life time. The payment or discharge of this note during the life of James Johnson was a condition precedent to the vesting of the title to said land in James Johnson, and it could not vest unless the condition was performed in his life time. To create a condition, no particular form of words need be used, for if a corresponding purpose be read in the will, that purpose takes effect. Schouler on Wills, 598. *68 The possession of an unindorsed negotiable note or bond raises a presumption that the person producing it on the trial is the real and rightful owner, and this presumption is not repelled or altered by a denial of the defendant in his answer of such ownership. Jackson v. Love, 82 N. C., 405. It is, prima facie evidence of ownership, and nothing short of fraud, not even gross negligence, is sufficient to overcome the presumption. Commissioners v. Clark, 94 U. S., 62, (4 Otto, 278). This is so between the holder and the maker but not between the holder and the payee. Holly v. Holly, 94 N. C., 670. And the burden of proof to rebut this presumption is on him who alleges any defect in the title, unless proof of fraud or illegality be offered, and then the burden of proof is shifted to the holder, and he must show that be received it Iona fide for value. Pugh v. Grant, 86 N. C., 39. This is not an action founded on the note for its collection. In the course of the trial the question of payment, as before stated, was an independent and separate fact to be ascertained without any regard to the principles of law, such as would apply in an action on the note between the payor and the payee and their representatives, and when the plaintiffs or defendant Gooch, as administrator of V. A. Johnson the devisor,-on the trial produced said note uncan-celled, the presumption of ownership and that the note had not been paid at once arose, and, without other proof, it was proper and it was the duty of His Honor to instruct the jury to find the issue as they did. If the note had been in the possession of James Johnson or his representative, the presumption of payment or discharge would have been equally strong in favor of the defendants. The defendants excepted because the witness Gooch stated that Mr. Burton said he found the note among the papers of J. J. Long. This exception is without force, *69 because without that statement it was the duty of the Court, as abové pointed out, to instruct the jury to answer the issue “yes” on the production of the note uncancelled. This was so unless the defendants had shown something to avoid that conclusion. The statement of Burton’s declaration was not useful to the jury aud could not have influenced their verdict. It was the possession of the note uncan-celled that entitled the plaintiffs to have the issue found in their favor without regard to anything.else on this.aspect of the case. The defendants did not offer any evidence of actual payment, but relied solely on the presumption of payment from the lapse of time, which presumption had not arisen at James Johnson’s death. It is therefore immaterial when the statute began to run. We understood the defe dants to abandon their exception to the competency of the witness Gooch to testify. There is no error and the judgment is affirmed. Affirmed.