Brickhouse v. Brickhouse, 33 N.C. 404, 11 Ired. 404 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 404, 11 Ired. 404

THOMAS C. BRICKHOUSE, ADM'R vs. JAMES BRICKHOUSE.

Trover will lie for promissory notes, by the administrator of the payee, against a donee by oral gift, though the gift be accompanied by delivery.

A recovery in trover for a note or bill at^d payment of the damages divest the property out of the plaintiff, and, indeed, vest it in the defendant, as between him and the plaintiff.

In actions by administrators, the letters of administration, granted, as they are, by a domestic tribunal of exclusive jurisdiction, and remaining unre-voked, are prima facie evidence of the death of the alleged intestate and of the right of representing him.

The case of Fairly v. McLean, 11 Ire. 158, cited and approved.

Appeal from the Superior Court of Law of Tyrrell County, at the Fall Term 1850, hia Honor Judge Caldwell presiding-.

The action is trover for three promissory notes, made by third persons, and payable to Joseph Brown, the intestate of the plaintiff*, and amounting, together, to the sum of @175. On the trial upon the general issue, the defendant set up title to the notes under a gift from Brown ; and he gave evidence, that, about the 1st of Nov. 1848 he, Brown, being about to sail on a voyage to the West Indies, delivered the notes to the. defendant, (who was his uncle) saying to him, “If I never return, these notes are to be vours.” Brown proceeded onjthe voyage at the time mentioned, and, at the time of trial,'in September 1850, he had not returned, nor had he, or the vessel, in which he sailed, ever been heard of, and it was the general belief, that they were lost on the voyage.

The counsel for the defendant thereupon insisted, that the evidence, if believed, established a gift of the notes to the defendant by the intestate, to take effect in the event the intestate should not return; and that ior that reason the plaintiff could not recover. And he further insisted, that the evidence, if believed, established a bailment of the notes to the defendant, to be kept by him for the payee Brown, until he should return home, and that the same had not been determined, and that, for that reason, the plaintiff could not recover. But the Court refused to give these instructions; and, after a verdict, and judgment lor the plaintiff, the defendant appealed.

2\ H Winston, Ji\, for the plaintiff.

Smith, for the defendant,

Ruffin, C. J.

The recent case of Fairly v. McLean, 11 Ire. 158 is an authority in point, that the right to property in the notes could be transferred only by endorsement and delivery, and that trover will lie for them by the adminstrator of the payee against a donee by oral gift, though accompanied by delivery. The doctrine is well settled. Bayley on bills 18, Story’s Prom, notes, S. 120. No point was made at the trial about a demand by the admin, istrator, so as to render the detention of the notes wrongful, and it must therefore be assumed, that the defendant refused to deliver them up and claimed to keep them as his legal property under the gift, conditional or absolute, which he set up, which is a conversion, and renders the defendant liable in this action, provided the notes beloug to the plaintiff, as administrator. It was said, indeed, at the bar, that, if the notes cannot pass to the defendant but by endorsement, it is thereby established, that trover will not lie for them, as it is incident to that action, that a recovery therein of the value and satisfaction thereof vest the property, in the thing converted, in the defendant. That may be generally true, but it is by no means universally so ; since trover often lies for a conversionxby the destruction of a thing. It is, moreover, w|ll settled, that trover will lie for a bond or note, although the former be not the subject of transfer at all; and further, that a recovery in trover for a note ©r bill and payment of the damages divest the property oat of the plaintiff, and, indeed, vest it in the defendant as between him and the plaintiff* Holmes v. Wilson, 10 Ad. and E. 511.

It is said, however, that the action does not lie, because, according to the terms of the bailment, it has not been determined by the return of the bailor. But his'death determines the bailment, unquestionably, so as to make the property, which was in him, vest in his administrator. What the defendant held for the intestate at the time of his death, he held, after that event, for the plaintiff as administrator. But it was argued, that it did not sufficiently appear, that the bailor was dead. The cirpum* stances constituted -evidence on which the jury might have found that person’s death, were it necessary that the plaintiff should have directly established it. But, in actions by administrators, the letters of administration, granted, as they are, by a domestic tribunal of exclusive jurisdiction, and remaining u nrevoked, are prima facie evidence of the death of the alleged intestate and the right of representing him. Moons v. DeBernoles, 1 Russ. 301.

Per Curiam, Judgment affirmed.