Jones v. Waldroup

217 N.C. 178

Opinion

Seawell, J.

A careful scrutiny of the evidence to which plaintiff ■objected fails to disclose reversible error.

The two more serious challenges to the introduction of that evidence are directed to the testimony of E. H. Corpening and Mrs. Maude Hunter, who testified as to conversations had with Dr. Waldroup with reference to the stock now sought to be recovered from this defendant. In view of the construction which the court must give to the action of Dr. Waldroup in causing the transfer of stock in some of the several associations concerned and of tbe paper writing admitted by both, sides to have been executed by Dr. Waldroup transferring stock to bimself and wife jointly, it seems clear to us that the statements of Dr. Wal-droup disparaging to his own exclusive ownership are strongly corroborative of the defendant’s position with regard to these disputed transactions and are relevant and admissible. Wilson v. Williams, 215 N. C., 407, 2 S. E. (2d), 19; Wilder v. Medlin, 215 N. C., 542, 2 S. E. (2d), 549.

It has also been suggested that Mrs. Waldroup was incompetent to testify as to the possession of the several certificates of stock and of the note in controversy as being excluded under the provisions of 0. S., 1795, as an interested party. This is upon the theory that such statement implied a delivery of the stock to the witness by Dr. Waldroup himself, such delivery constituting a personal transaction between the two having an important bearing on the transfer of title.

Although there are authorities supporting such a position (see 70 C. J., 313), the better opinion is clearly in favor of the competency of such evidence. Citation supra. McCombs v. McCombs, 204 Wis., 293, 234 N. W., 707. But it is not an open question in this State. In Thompson v. Onley, 96 N. C., 9, 13, where the issue was between the defendant and the administrator of the deceased person to whom an unendorsed note in defendant’s possession is payable, and where, of course, the question of delivery was paramount, defendant was permitted to testify that the note was in her possession at the commencement of the action. P assing on this the Court said: “It cannot be seen that the only source of the witness’ information was a personal transaction or communication between her and the deceased.” In the case at bar the fact of possession implies, perhaps even more strongly, that the possession had been derived from the corporations who issued the stock, and as to the note, from the maker of it, since it was payable to either plaintiff’s intestate or defendant.

The question, however, seems to be academic in the case at bar, since the fact of possession is not in dispute. The plaintiff brings an action for the recovery of the specific items, and in his complaint alleges the possession of the defendant. The inference of delivery of the certificates of stock and note by Dr. Waldroup is as strongly raised by the admitted facts as it would be by the testimony of the witness alone.

Under the Onley case, supra, the testimony must be regarded as an independent fact. See comparison of cases in Wilder v. Medlin, supra; Sutton v. Wells, 175 N. C., 1, 3, 94 S. E., 688; In re Will of Saunders, 177 N. C., 156, 98 S. E., 378.

There are exceptions to the charge, relating to the burden of proof, with which we cannot deal adequately without attempting to remove from the case some misapprehension of law respecting the theory on which the case was tried.

It was understood by the plaintiff, and the theory adopted by the •court, without much protest on the part of the defendant, that the paper writing in which Dr. Waldroup purported to convey the Blue Ridge stock to himself and wife, with the rights of survivorship, as well as his conduct in requiring that new issues of .stock in the other building and loan companies be made to himself and wife, with an indication that he intended survivorship, had no other effect than to create an agency in Mrs. Waldroup, terminated by the preceding death of her husband. This view is not consonant with the facts, or with a proper interpretation of either the paper writing referred to or the transaction by which Waldroup caused the new issues of stock to be made to himself and wife; and that view is not supported by the authorities cited in plaintiff’s brief.

C. S., 1735, abolished survivorship in joint tenancy, with an exception as to partners, so that the surviving partner might apply the partnership assets to the partnership debts. After this has been accomplished, the remainder goes, under the Statute of Distributions, to those entitled.

But this statute abolished survivorship only where it follows as a legal incident to an existing joint tenancy. It did not, and does not, prevent persons from making agreements as to personalty such as to make the future rights of the parties depend upon the fact of survivorship. Taylor v. Smith, 116 N. C., 531, 535, 21 S. E., 202. Since there is nothing in public policy to prevent it, the right should be upheld.

Defendant cites in the brief Jones v. Fullbright, 197 N. C., 274, 148 S. E., 229, and Nannie v. Pollard, 205 N. C., 362, 171 S. E., 341, both of which cases concern a joint checking account at the bank; and there is nothing in the evidence in those cases to indicate that the ownership of any part of the account had been transferred from the husband. Such an account might run from one cent to millions, and in its fluctuation the original items of deposit may have disappeared in the process of checking many times. The cases are not analogous to the one at bar. The other cases cited — Graham v. Graham, 9 N. C., 322; Morrow v. Williams, 14 N. C., 263; Dail v. Jones, 85 N. C., 221; Outlaw v. Taylor, 168 N. C., 511, 84 S. E., 811; Speight v. Speight, 208 N. C., 132, 179 S. E., 461; Nixon v. Nixon, 215 N. C., 377, 1 S. E. (2d), 828 — all relate to attempts totidem verbis to reserve a life estate in personalty with remainder over. This has nothing to do with a joint tenancy in personalty with survivorship created by contract — either bilateral agreement or gift. Taylor v. Smith, supra.

We construe the conveyance, admittedly made by Dr. Waldroup, with reference to the Blue Ridge stock, as creating a common ownership in the property which is its subject until one of them should die, with the right of survivorship.

As to the other corporations involved, just as in all corporations, the title of the stock might be by assignment, without reference to registry on the books of the company — which is good inter yaries — following which the legal title might he perfected by such registry and the delivery of the certificates. Havens v. Bank, 132 N. C., 214, 43 S. E., 639; Cox v. Dowd, 133 N. C., 537, 45 S. E., 864. But this is by no means an exclusive method of transfer. It may be done by direction of the holder and owner of the stock upon the books of the company which, followed by delivery, or a surrender of the dominion of the certificates to the transferee, would make the title complete. C. S., 1164; Mitchell v. Realty Co.,’169 N. C., 516, 86 S. E., 358; Bleakley v. Candler, 169 N. C., 16, 84 S. E., 1039; Richardson v. Emmett, 61 App. Div., 205, 70 N. Y. S., 546, 170 N. Y., 412, 63 N. E., 440; Chicago Title & Trust Co. v. Ward, 332 Ill., 126, 163 N. E., 319.

The position of the defendant here is even stronger, because Waldroup required the issue of new stock to himself or wife, which was so registered upon the hooks of the company, under his instruction, under circumstances which might be evidence of a gift inter vivos, creating an estate for the common enjoyment of himself and wife, with the right of survivorship upon the death of one of them.

In all these matters we are dealing with certificates of stock issued to plaintiff’s intestate and Hattie L. Waldroup. We use the term “and” advisedly, because consistently with the apparent intention of the assignment appearing in the record, the letters and conduct of Dr. Waldroup in having the stock issued that way and so registered upon the books of the corporations, the disjunctive (used no doubt to emphasize the sur-vivorship) “or” may be read as the conjunctive “and.” Ham v. Ham, 168 N. C., 487, 84 S. E., 840; Pilley v. Sullivan, 182 N. C., 493, 109 S. E., 359; Richmond v. Woodward, 32 Vt., 833, 838; Litchfield v. Cudworth, 32 Mass., 23, 27.

Under this evidence and its legal implications, it is clear that the plaintiff was not entitled to the instruction that if the jury believed the evidence they should find in his favor.

On the issues relating to the ownership and right to possession of the stocks in the building and loan associations, the judge gave instructions to the jury, of which the following is typical: “The court instructs you that the burden is on the plaintiff, the administrator, to establish his ownership to the stock, and that the defendant does not have to prove she is the owner, but that the plaintiff must affirmatively establish that he is the owner. And if from the evidence you find that the stock was the proceeds of an investment made by Dr. Waldroup for Mrs. Wal- droup, then sbe would be tbe owner of tbe stock regardless of tbe name to whom it was made out, and tben in tbat event it would be your duty to answer tbat issue ‘No.’ finding tbat tbe property did not belong to tbe administrator, but to Mrs. Hattie L. Waldroup.” Tbe plaintiff complains tbat tbis instruction placed a greater burden upon bim than tbe law requires.

It is true tbat tbe burden of an affirmative issue, such as those submitted to tbe jury in tbe instant case, is upon tbe plaintiff and does not shift during the course of tbe trial. Everett v. Mortgage Co., 214 N. C., 778, 1 S. E. (2d), 109; Benner v. Phipps, 214 N. C., 14, 197 S. E., 549; Williams v. Ins. Co., 212 N. C., 516, 193 S. E., 728; Stein v. Levins, 205 N. C., 302, 171 S. E., 96; Hunt v. Eure, 189 N. C., 482, 127 S. E., 593. But tbe burden is upon one who asserts an affirmative plea to establish it by appropriate proof. Benner v. Phipps, supra; Everett v. Mortgage Co., supra; Mitchell v. Whitlock, 121 N. C., 166, 28 S. E., 292; Mayo v. Jones, 78 N. C., 402.

Tbe trial judge placed tbe claim of tbe plaintiff and tbe claim of tbe defendant in apposition in tbis instruction, and tbe jury may have been led to believe tbat it was incumbent upon tbe plaintiff to overcome tbe evidence of tbe defendant as to her affirmative plea by preponderating proof without regard to any burden in that respect which tbe law of evidence placed upon tbe defendant.

Tbis case, as we have seen, was tried upon tbe theory tbat tbe assignment of tbe Blue Ridge stock, and tbe acts of Dr. Waldroup in causing new stock to be issued to himself and wife, and so registered on tbe books of tbe corporations of tbe two other building and loan associations, created merely an agency in Mrs. Waldroup, which terminated at tbe death of Waldroup. Under tbis theory, tbe only avenue of approach to a consideration of tbe subject permitted tbe jury was toward a consideration of tbe equitable claim asserted by Mrs. Waldroup. However erroneous tbis theory was, it is impossible for us now to say what tbe jury might have done if tbe case bad been tried otherwise; and upon tbe theory adopted, the instruction was erroneous and confusing as to tbe burden of proof.

It is to be observed here tbat tbe same evidence of plaintiff which was considered to establish bis prima facie title to tbe stocks also disclosed their assignment by Dr. Waldroup and their transfer’upon tbe books of tbe corporation and new issue of stock according to bis instructions. Tbe defendant made no appropriate motion with regard to tbe effect of tbis evidence legally considered, and we make no decision here as to its sufficiency in establishing plaintiff’s title. If it merits submission to tbe jury, the burden which rests upon the plaintiff with regard to it should be properly explained, as well as the burden which rests upon the defendant to support her affirmative claim with the requisite degree of proof.

But the result of the trial with regard to the note should not be disturbed.

The plaintiff contends that the judge erroneously instructed the jury that the possession of this note raised a presumption of ownership which he says is not true as against a payee, and cites Hayes v. Green, 187 N. C., 776, 123 S. E., 7. In the cited case the unendorsed note payable to plaintiff was in the hands of a holder who was not payee. In this case both Mrs. Waldroup and plaintiff’s intestate were payees, and the plaintiff has shown no superior right of ownership or possession. The judge was correct in his instruction to the jury that if they believed the evidence they should find in favor of the defendant.

For the errors pointed out, the plaintiff is entitled to a new trial, with respect to the stocks mentioned in the first three issues, and it is so ordered. With respect to the fourth issue, involving the note, we find no reversible error.

Partial new trial.