Loyd v. Loyd , 113 N.C. 186 ( 1893 )

Avkky, J :

The appeal is from an intimation of the Court below that the plaintiff’s testimony did not, if admitted, establish prima facie the right to recover. This depends upon the application of the doctrine of presumptions. She did not state what was the date of her marriage, whether before or after the Constitution of 1868 was ratified. If before, all of her personal property belonged absolutely to the husband on the celebration of the marriage, though it was given to her by him while she was still a feme sole, and the plaintiff could not recover certainly the articles given her before such marriage. Giles v. Hunter, 103 N. C., 194.

The duty rests at all stages of a trial upon the actor to prove such allegations as are essential to his recovery. He may discharge this duty by submitting plenary testimony, which, uncontradicted, entitles him to a verdict; or he may, after proving directly some of the facts that he is bound to establish, shift the burden, as to others, by offering such evidence as will raise a presumption of their truth, and resting until the other party shall have attempted to rebut the presumption so raised.

The plaintiff testifies that she was lawfully married to the defendant, and that the articles of personal property for which the action was brought were given to her by the bus-band before and after marriage. If a stranger bad testified that he witnessed the celebration of a marriage in some foreign country, or in this State, between the same parlies, at a date not remembered,, the presumption would have arisen that the rites were performed in accordance with the laws then in force in the foreign country, or in this State, as the case might be. 14 Am. and Eng. Enc., 531, note; State v. Patterson, 2 Ired., 346. Nothing more appearing than the lawfulness of a marriage, ata date unknown to or not stated by a witness, the Courts would not refuse to adjust the rights of children or creditors of either of the parties that might be dependent primarily upon the maiilal rights of the husband growing out of the contract. The contract could not be treated as a nullity for want of proof of its actual date, and the difficulty would be met by invoking the aid of the presumption not only that the marriage was celebrated in accordance with law, but in conformity to the statutes now in force in this State. Durham v. Bostic, 72 N. C., 353.

In Durham v. Bostic, supra, the Court declared that a Sheriff was justified in assuming that the contract upon which the judgment.was rendered and the execution issued was entered into since the ratification of the Constitution of 1868, if nothing to the contrary appeared upon the face of the execution, and the suggestions in this case led to the enactment of the later statute (The Code, §§234, 235 and 236). We think, that as a general rule, a contract relating to marriage or other matters must be presumed, in the absence of specific proof, to have been entered into under the statutes now in force, as well as in full contemplation of their provisions.

Moreover, there is a presumption in favor of the validity of all gifts and contracts, and we must infer, when the uncon-tradicted fact appears that the defendant husband gave to his wife certain articles of personal property; that the gift vested a valid title in her. Woodruff v. Bowles, 104 N. C., 197. The burden is upon him to show that the property was not given to her, or that the attempted gift was invalid. In cases where the bona fides of a gift or conveyance from a husband to his wife is drawn in question, evidence that the husband is embarrassed with debt muy impose the burden of rebutting the presumption of fraud upon the wife. Osborne v. Wilkes, 108 N. C., 651. But there is no allegation of proof of fraud in this case. The only question involved is whether the testimony of the plaintiff, if admitted to be true, establishes her right to the articles of property which she testifies were given to her by the defendant.

We think that the Court below erred in intimating that the plaintiff was not entitled to recover, if her own. testimony was believed. The judgment of nonsuit must be set aside and a New Trial Granted.