Bond v. Bond

95 S.E. 1005, 22 Ga. App. 366, 1918 Ga. App. LEXIS 342

• Court: Court of Appeals of Georgia
• Decided: May 16, 1918
• Docket: 9411
• Status: Published

Opinion

Luke, J.

1. A person in possession of a promissory note payable to bearer is presumed to be the owner thereof, until the contrary appears. The burden of rebutting this presumption is upon the party claiming adversely to the party in possession of the note, and the issue as to who is the real owner is a question of fact to be passed upon by' a jury. Gate City Fire Ins. Co. v. Thornton, 5 Ga. App. 585 (63 S. E. 638); Culpepper v. Culpepper, 18 Ga. App. 182 (89 S. E. 161).

2. To constitute a 'valid gift, there must be the intention of the owner to give, acceptance by the donee, and delivery of the article given, or some act1 accepted by the law in lieu thereof.,. Any act that indicates renunciation of dominion by the donor, and the transfer of dominion to the donee, is constructive delivery, and may suffice to create a valid gift. Civil Code (1910), §§ 4144, 4147.

3. There, being evidence to authorize the verdict in favor of the defendant, and the verdict being approved by the trial judgé, and there being no assignment of error of law that requires a reversal of the judgment overruling the motion for a new trial, the judgment is

Affirmed.

Wade, C. J., and Jenhins, J., coneu/r.

In the motion for a new trial it is alleged that the court erred in charging the jury as follows: “I charge you that if he [the testator] delivered it [the note] or undertook to deliver it by putting it in her [the defendant’s] own private trunk, separate and distinct from his papers, if nothing more ■ appeared from the evidence as indicating his intention, and if that was the situation, the burden would be on the executors to show by a preponderance of the evidence, that the title to the note did -not pass.” • It is aíleged that this was error because it was in effect an instruction that the mere placing by the husband of a negotiable instrument in his wife’s trunk when they were living together as man and wife would place on the husband or his legal representatives the burden of showing that he did not thereby intend to give it to her; and because it was in effect a charge that the pláeing of the instrument in the wife’s trunk in her absence and without her knowledge would prima facie pass title to it; and no such rule is applicable between near relatives. Another ground of the'motion is that the court erred in not charging the jury, without any request so to do, that the mere delivery of personal property by the husband into the possession of the wife living with him would not be sufficient to create the presumption of a gift.

A. W. Vandiviere, O. J'. Lilly, for plaintiffs, cited:

Park’s Code, §§ 4150, 5729; Broom v. Davis, 87 Gc. 584; Smith v. Berman, 8 Ga. App. 262; 20 Cyc. 1197.

O. L. Harris, George F. Gober, for defendant, cited:

Civil Code (1910), § 3740; Blalock v. Miland, 87 Ga. 574 (5); Ogden v. Dodge County, 97 Ga. 461 (2).