#### VANN v. EDWARDS.

(Filed March 11, 1902.)

1. APPEAL- — Case on Appeal.

A statement in a case on appeal that the defendant admitted claiming a note hy virtue of an endorsement does not preclude defendant from urging in the supreme court that his possession of the note was prima facie evidence of his ownership thereof.

2. NEGOTIABLE INSTRUMENTS — Possession—Presumptions.

The possession of a note hy an endorsee of a married woman is prima facie evidence of ownership, the note having been in possession of the husband after the endorsement.

MotioN to rebear dismissed.

For former decision, see 128 N. C., 425.

Winborne & Lawrence, for tbe petitioner.

L. L. Smith, in opposition.

Montgomery, J.

An opinion in tbis case was delivered at tbe February Term, 1901, and is to be found in tbe 128 N. C., 425. A petition to rebear was filed by tbe appellee and granted, and tbe mater is before- us again for consideration. Tbe material facts for tbe present purposes are these: Tbe defendant, in 1888, executed to bis mother his bond in the sum of five hundred dollars. She, in tbe lifetime of her husband, gave tbis bond to the defendant by delivery and her endorsement, but without the knowledge or consent of her husband After the mother’s death tbe bond was in tbe father’s possession, but after bis death it was found in tbe defendant’s. Tbe husband of the payee, who- was also tbe father of tbe defendant and payor, qualified as administrator of bis deceased wife, and having died before be bad fully adminis*71tered tbe estate, an administrator de bonis non was bad by tbe plaintiff, wlio brought tbis action for tbe recovery of tbe value of tbe bond.

There are in tbe petition to rehear two alleged errors: Tbe first is that tbe Court must have overlooked tbe statement in tbe case on appeal “that it was admitted by tbe defendant that be claimed the note by virtue of tbe endorsement of tbe same to him by his mother.” We were not inadvertent to that statement, but we regarded it not as depriving the defendant of tbe right to use, in connection with and as a part-of that- claim, the legal effect of his having in bis possession the note at tbe death of his father — the father having had possession of it after his wife’s death. The record shows that the case was tried on the theory that the defendant was claiming the bond both under tbe gift and endorsement of tbe mother and the presumption of ownership by possession in himself after the mother’s death and after the father had bad it in his possession; for the Court permitted him to introduce evidence' of his possession of the note after it had been in tbe hands of the father, declarations of both tbe mother and the father to tbe effect that it had been given to the defendant and that he did not owe it.

Tbe other error alleged in the petition to rehear is that the Court held that the Judge below should have instructed tbe jury, “If the jury find that the note in controversy was in possession of Darius Edwards at any time after the death of Sarah E. Edwards, and prior to October, 1896, and that afterwards it was in possession of the defendant, from October, 1896, until the commencement of this action, tbe law presumes that such possession was lawful and that he is the owner thereof; and the burden is upon the plaintiff to satisfy the jury upon preponderance of testimony that such possession is not lawful, and unless the plaintiff so satisfies the jury, you must answer the first issue ‘No.’ ”

*72The counsel cited to us the cases of Thompson v. Onley, 96 N. C., 9; Holly v. Holly, 94 N. C., 670, and Robertson v. Dunn, 87 N. C., 191, ou the point to sustain bis view of the law. Upon an examination of these cases, it will be seen that they are against his contention. It is decided in them that there is no presumption of ownership in favor of the holder of an unendorsed note against the payee. But the holder of the note in our case was the payor, and the presumption is with him.

The petition must be dismissed.