Turnley v. Black , 44 Ala. 159 ( 1870 )

PECK, C. J.

This action was brought by the appellees, as the executors of the last will and testament of Peter’ Black, deceased, on a promissory note made by the appellants and payable to one J. G. J. Whiteside. The appellants filed a sworn plea, that the said note was given to said Whiteside, and that said note was never endorsed nor assigned to said appellees’ testator, and that they had no interest in, or title to, the said note. A trial was had by a jury on this plea. The appellees read the said note to the jury, and then proved by S. R. Black, one of the executors, that as executor he found the said note among the papers of the deceased, and made a return of the same to the probate court, as a part of the assets of testator. There was much evidence on both sides; that on the part of appellants tended to show, that the note had never been transferred to the deceased, or otherwise parted with, by said Whiteside; and that on the part of the appellees tending to show, that he had transferred the said note to the deceased. When the case was submitted to the jury, the appellants asked the court, in writing, to give six several charges to the jury, all of which were given, except the second, which was refused. The second charge asked, is in the following words, to-wit, that “ the note being payable to J. G. J. Whiteside, the law presumes he is the owner, until the evidence shows that his title to the note has terminated.”

Under the said plea and the evidence in the case, this charge should have been given. It is certainly true, that . the law presumes that the payee is the owner, until the contrary is shown. — Grigsby, Ex’r, &c. v. Nance, 3 Ala. 347; Greenl. on Evidence, § 41. But this presumption is overcome, when it is proved to be in the possession of. another claiming it as his own, or if found among the papers of a deceased person.

The appellants, under the plea and the evidence, were entitled to have the question, whether this note belonged to the payee, or Lad been transferred to appellees’ testator, fairly submitted to tbe jury. Tbe charge asked and refused, if given, would have done this. As the evidence of the appellants tended to show that the note still belonged to the payee, whether strongly or slightly, was not a question for the court, but for the consideration of the jury, therefore, the charge asked and refused should have been given. The refusal to give this charge, with other matters stated in a bill of exceptions, relating principally to the admissibility of evidence, are assigned for errors. We think, however, there is nothing in the other assignments of error, but for the error in refusing to give the second charge, the judgment is reversed and the cause remanded, at the costs of the appellees.