Kesler v. Roseman, 44 N.C. 389, 1 Busb. 389 (1853)

Aug. 1853 · Supreme Court of North Carolina

44 N.C. 389, 1 Busb. 389

TOBIAS KESLER, ADM’R. OF J. W. ROSEMAN vs. EDMUND H. ROSEMAN.

Where goods of an intestate arc converted after his death, his administrator, in an action of trover to recover the value, must produce on the trial his letters of administration as evidence of his title.

This was an action of trover for money, tried before his Honor, Judge Caldwell, at Rowan, on the last Spring Circuit. Plea — general issue. The following is the case, as it appears upon the transcript of the record sent to this Court: — The plaintiff’s intestate being sick and unable to leave home, made a note or bond payable to Tobias Kesler for the sum of one hundred and fifty dollars, handed the same to the defendant, and requested him to take it to Kesler and get the money of him, and deliver to him the note, and to pay over the amount received of said Kesler to certain named creditors of the intestate. The defendant took the note or bond to receive the money thereon of Kesler, and to pay over the money to said creditors of the intestate, one of whom was one Eddleman. The defendant presented the note or bond for the $150 to Kesler, who could only advance the sum of one hundred dollars thereon, and a credit of fifty dollars was thereupon endorsed on said note and the same delivered to Kesler, and the defendant received from him the one hundred dollars for the benefit of the intestate. Of this sum, the defendant paid over a portion to the said creditors of the intestate, but refused to pay any to Eddleman, who demanded the same at the house of the intestate whilst he was yet living, but in so low a state of health as to be entirely unconscious. The plaintiff demanded the money of tbe defendant after the death of the intestate, and the defendant refused to pay it, though he admitted at the time that he had received the money of Kesler.

The plaintiff declared for no particular kind of money, nor was there any proof as to the kind of money received by the defendant of Kesler. The money was not alleged nor proved to have been in a bag, nor to have had any marks to distinguish it from other money.

The defendant insisted that upon this proof the plaintiff could not recover : first, because trover would not lie in such a case for money, and the action should have been assumpsit; secondly, if tro-ver was maintainable in any case for money, it could only be for money in a bag, or having some mark to distinguish it, and it must be for so many Spanish milled dollars, so many bank bills of a particular bank, or the like. And the defendant further insisted, that it was necessary for the plaintiff to produce his letters of administration, to support his chain of title.

His Honor, the presiding Judge, was of opinion that it was unnecessary for the plaintiff to exhibit his letters of administration ; and he informed the jury that if they believed the testimony, the plaintiff was entitled to recover the balance of the hundred dollars, after deducting the amount paid by defendant to the creditors of the intestate. There was accordingly a verdict for the plaintiff, and after a rule for a new trial was" discharged, and .judgment rendered on the verdict, the defendant appealed to the Supreme Court.

Craige, Bynvm and Shipp, for the defendant.

Lander and Guión, for the plaintiff.

Nash, C. J.

Our attention in this case is confined to the error committed by the presiding Judge, in deciding that it was not necessary for the plaintiff to produce upon the trial his letters of administration. The error aro'se from considering what is called the conversion in this case as having taken place in the lifetime of the intestate, J. W. Roseman. The action is in trover, and without deciding whether it can be sustained, we think his Honor erred in his ruling upon the question of testimony. At the time that Eddleman made his demand for the portion of the money due to him the intestate was alive, but so- low that, in the language of the case, he was entirely unconscious. If the demand, and the refusal to pay Eddleman the money was evidence of a conversion, it was such evidence as to the claim of Eddleman, and might have given him an action against the defendant; but it was no denial of the right of J. W". Roseman. Before the latter or his representative could maintain any action against the defendant, it was necessaiy to put him in the wrong by making a demand ; for he was a bailee. Accordingly, after the death of J. W. Roseman, the plaintiff, his administrator, did demand the money, and the defendant refused payment. From this refusal to pay, the plaintiff’s cause of action arose. The conversion in trover is the gist of the action, and, in this case, it took place after the death of J. W. Roseman, and his intestate was obliged to declare in his own name, because the cause of action arose to him and not to his intestate. When the cause of action arises in the lifetime of a deceased man, the plaintiff, his representative, must declare as such, and in that case must, in his declaration, make profert of his letters testamentary, or of his administration ; and they are traversable by the defendant. If the representative declare upon his own possession, he need not make any profert, but-in that case, as in any other at law, he must show a legal title to the thing demanded, and his letters constitute a necessary link in the chain.

There was error in the ruling of the Court, occasioned no doubt by considering the demand made by Eddleman as evidence of the conversion. For this error the judgment must be reversed, and a venire de novo awarded.

Per Curiam. Judgment reversed, and venire de novo awarded.