Union National Bank v. Jonas, 212 N.C. 394 (1937)

Nov. 3, 1937 · Supreme Court of North Carolina

212 N.C. 394

UNION NATIONAL BANK v. A. GARLAND JONAS and ALEXANDRIA L. JONAS.

(Filed 3 November, 1937.)

1. Limitation of Actions § 18: Seals § 3 — Introduction of note appearing upon its face to be under seal raises presumption to that effect.

The introduction in evidence of a note appearing on its face to be under seal, with deed of trust securing same referring to the note as a bond, without evidence on the part of the maker that he did not intend to adopt the seal appearing upon the note, is sufficient to support a directed verdict that the note is not barred by the three-year statute under the presumption arising from the evidence that the note was under seal.

2. Limitations of Actions § 18: Bills and Notes § 10a — Person signing note on its face is presumed to be maker.

Where a wife signs a note with her husband on its face, she is presumed to be a maker, and where she does not offer evidence tending to rebut this presumption, or allege that she signed the note as surety, introduction in evidence of the note under seal is sufficient to support a directed verdict that the action on the note was not barred as to either by the three-year statute.

Appeal from Johnston, J., at tbe May Term, 1937, of Caldwell. No error.

Tbis is a civil action to recover balance due on promissory note signed by tbe defendants and appearing upon its face to be under seal. Tbe note on its face makes reference to a trust deed and tbe trust deed describes tbe note as a bond. There was a first mortgage on tbe premises described in tbe trust deed securing tbis note, wbicb first lien bas been foreclosed.

Tbe defendants, answering, admitted that they executed a note to tbe plaintiff, not under seal, but denied upon information and belief tbe correctness of tbe copy attached to tbe complaint and pleaded the three-year statute of limitations.

At tbe trial tbe plaintiff offered evidence as to tbe execution of tbe note and as to tbe balance due thereon, introduced tbe note in evidence and rested.

While tbe defendant, A. Garland Jonas, testified in bis own behalf, be did not in bis testimony, at any time, deny tbe adoption by him of tbe seal appearing upon tbe note. Tbe feme defendant did not testify. Tbe note was signed 12 August, 1932, and credits appeared thereon subsequent to that date. Summons was issued 22 May, 1936. Tbe jury under tbe instructions of tbe court answered tbe issues adversely to tbe defendants and tbe defendants appealed.

B. F. Williams for plaintiff, appellee.

Newlabd & Townsend for defendants, appellants.

Per Curiam.

Tbe note bearing seals opposite tbe names of tbe respective makers constitutes presumptive evidence that tbe note was under seal. Tbis was fortified by tbe reference appearing in tbe face' of the note to tbe trust deed securing tbe same. Tbe defendants offered no evidence in rebuttal. It follows that tbe note was not barred by tbe three-year statute of limitations and that tbe instructions of tbe court were correct. This ease is controlled by Allsbrooh v. Walston, ante, 225, and cases there cited.

A person who signs a note upon its face is, under the statute, presumed to be a maker. This presumption may be rebutted by competent testimony. The feme defendant, however, did not in her answer set up the defense that she was a surety upon said note, nor did she offer any evidence to that effect. In the trial below there was

No error.