Turner v. Turner

Hayne, C. — This was a suit to foreclose a vendor’s lien to secure the amount of six promissory notes. One of the defenses was, that the notes had been paid; and the trial court found this to be the fact. The counsel for the appellant contend that this finding is not supported by the evidence. But we think that the evidence must be held to be sufficient to support it.

The notes were made by one J. T. Turner to his brother Robert Turner, whose administrator is the plaintiff here. Both brothers were dead before the suit was commenced; and there was no direct evidence for or against the payment. The plaintiff did not produce the notes at the trial, or give any satisfactory explanation of their absence. It was shown that diligent search had been made among the papers of Robert Turner, and inquiry made of every person who would be likely to know about them; but nothing was heard of them. The last seen of some of them was that they were in possession of the maker.

The possession of the notes is a material circumstance in relation to the question of payment. Possession by the maker raises a rebuttable presumption of payment. (Code Civ. Proc., sec. 1963, subd. 9; Greenl. Ev., see. 527; Zeigler v. Gray, 12 Serg. & R. 42; Lipscomb v. De Lemos, 68 Ala. 592; Carroll v. Bowie, 7 Gill, 41.) And on the other hand, possession by the payee is prima facie evidence of non-payment. (Somervail v. Gaillies, 31 Wis. 155; Ritter v. Schenk, 101 Ill. 389; Haywood v. Lewis, 65 Ga. 225.) And upon this principle it has been held in this state that if payment is denied the onus is upon [567]the plaintiff to prove the non-payment at least by the production of the note. (Farmers’ Bank v. Christensen, 51 Cal. 572.) In other words, if the plaintiff does not produce the note or account for its absence, the presumption is against him.

There was evidence tending to strengthen this presumption. Robert Turner, the payee, was executor of his brother’s will. And in making out the appraisement he gave to the appraiser a list of the debts and encumbrances of the estate, on which occasion, according to one of the appraisers, the following occurred: “After the debts was all in I asked if there was any further claims against the estate that he knew of, and he, Robert Turner, told me there was none.' I was referring more particularly to that land.” The inventory and appraisement were introduced in connection with this testimony, and contained no reference to the notes or lien. Although the ascertainment of the debts which the deceased owed was not the duty of the appraisers, yet the conversation was admissible as an admission of the payee, and the inventory was admissible in connection therewith.