#### MOLLIE REBECCA WOOTEN v. L. R. BELL.

(Filed 20 February, 1929.)

1. Bills and Notes — Actions—Burden of Proof.

Upon tbe admission of tbe execution of a note the burden is upon tbe defendant to prove payment when relied on by him.

2. Bills and Notes — Actions—Lost or Destroyed Notes.

A recovery may be bad upon a lost or destroyed note upon satisfactory evidence of its execution, and where this is proved, testimony as to the note itself is admissible.

3. Same — Payment—Bonds.

Tbe provisions of O. S., 3056, that upon payment of a note it must be delivered up to tbe party paying it, does not apply where tbe note has been lost or destroyed, and, under tbe facts of this case, there was no error in not requiring a bond for tbe protection of tbe maker where there was no request made therefor.

*6554. Forfeitimes — Failing to Fist Evidence of Indebtedness for Taxes— Bills and Notes.

Public Laws of 1927, ch. 71, sec. 64, providing that notes, claims, etc., shall not be recoverable in any action or suit until they have been listed and the taxes paid thereon, will not be construed to work a forfeiture, and does not prevent a recovery on such evidence of debt, but postpones the recovery of judgment thereon until listed and the taxes paid, and where in an action on a note this defense is pleaded, the trial court has the power to allow the plaintiff to list it and pay taxes thereon during the trial and give judgment.

Appeal by defendant from Barnhill, J., and a jury, at November Term, 1928, of Edgecombe.

No error.

Tbe issues submitted to tbe jury and tbeir 'answers thereto were as follows:

“1. Has tbe note set out and described in tbe complaint, from tbe defendant to tbe plaintiff been paid, as alleged? Answer: No.

2. If not, wbat amount is due tbereon? Answer: $750 and interest.

3. Has tbe plaintiff failed to list for taxation said note as a solvent credit during tbe several years since tbe same was given to tbe plaintiff, witb a view to evade tbe payment of taxes? Answer: Tes.”

Tbe court below rendered tbe following judgment: “Tbis cause coming on to be beard at tbis, tbe November Term, 1928, of tbe Superior Court of Edgecombe County, and being beard before bis Honor, M. Y. Barnbill, judge presiding, and a jury, and tbe jury having answered tbe issues as set out in tbe record: And, whereas, during tbe course of tbe trial tbe defendant by amendment to bis pleadings having raised tbe issue that tbe note sued on in tbis action bad not been listed for taxes, and tbe jury having answered tbis issue in favor of tbe defendant, and before judgment, tbe plaintiff having listed and paid all taxes .and penalties due on said note, and tbe court finding tbis as a fact, that said note has now been listed, and all taxes and penalties paid tbereon: It is, therefore, on motion of Henry C. Bourne, attorney for tbe plaintiff, ordered, adjudged and decreed that said plaintiff recover judgment against said defendant for tbe sum of $750, witb interest tbereon at tbe rate of 6% per annum, from 1 January, 1921, until paid, and for costs of tbis action to be taxed by tbe clerk.”

Tbe material facts and assignments of error will be set forth in tbe opinion.

Henry 0. Bourne for plaintiff.

F. M. Wooten for defendant.

OlaeksoN, J.

Tbe plaintiff sued defendant for tbe recovery of $750, and interest due by note made by defendant to her. Tbe defendant .ad*656mitted tbe execution o£ tbe note and plead payment. Tbe defendant set up tbe further defense, “That plaintiff with a view to evade payment of taxes failed to cause to be listed for taxation tbe note in question and pay taxes thereon. (This amendment allowed and made in progress of tbe trial.)

Tbe defendant’s first exception and assignment of error was to tbe effect that tbe Court erred in permitting tbe witness, A. T. "Wooten, to give evidence relative to tbe note, tbe subject of the action. Tbe defendant demanded that tbe plaintiff produce tbe note on which tbe action was based. Tbe defendant contended tba.t the note bad been paid, delivered to him and destroyed, relying upon O. S., 3055. We cannot sustain tbe defendant’s contention.

C. S., 3055, is as follows: “Tbe instrument must be exhibited to tbe person from whom payment is demanded, and, when it is paid, must be delivered up to tbe party paying it.” Ordinarily this must be done, but not so when tbe instrument is lost or destroyed.

Tbe defendant having admitted tbe execution of tbe note and plead payment, tbe burden was on the defendant to prove payment. Collins v. Vandiford, ante, at p. 239.

Tbe defendant testified: “I walked over there and asked Mr. Graham was tbe note in tbe bank, and be said ‘Yes’; and I paid Mr. Graham, and I am satisfied be gave me tbe note, and I think I walked out and tore it to pieces and threw it in the street.”

Plaintiff’s evidence was to tbe effect that tbe note bad not been paid, but was lost, and for that reason could mot be produced on tbe trial, further, that diligent search bad been made for tbe note. Mahoney v. Osborne, 189 N. C., 445; Bank v. Brickhouse, 193 N. C., 231.

Speaking to tbe subject in 3 R. C. L., under Bills and Notes, etc., sec. 568-569, p. 1336, is tbe following: “Tbe general rule is, that where a writing is merely tbe evidence of a contract, its loss or destruction does not destroy tbe cause of action, but renders secondary evidence admissible. Where, however, from tbe nature of tbe contract, tbe party answerable on it is entitled to have tbe writing delivered up to him, for bis security, or to enable him to enforce bis rights under it, when be is called on to perform it, as in tbe case of a negotiable bill or note, if it is lost or destroyed, an action is not maintainable on it, unless bis rights can be fully secured by a bond of indemnity or other sufficient security.” Shields v. Whitaker, 82 N. C., at p. 518; Fisher v. Webb, 84 N. C., at p. 48; Insurance Co. v. Gavin, 187 N. C., p. 14.

This Court has held that recovery can be bad upon a lost or destroyed note, and upon satisfactory evidence of tbe fact the witness can testify as to tbe note itself. Many cases in this connection suggest tbe propriety of requiring a bond of tbe plaintiff to protect tbe maker of tbe *657lost or destroyed instrument. In tbis case tbe defendant requested no sucb bond and tbe judge did not require it of bis own motion. In fact, defendant testified tbat be “tore it to pieces and threw it in tbe street.”

Tbe defendant’s second exception and assignment of error was to tbe effect tbat tbe jury baying answered tbe third issue “Yes,” tbat defendant was entitled to judgment and tendered same, which tbe court below refused to sign. In tbis we think there was no error. To sustain tbis contention defendant relied on tbe following act :

> “If any person shall, with a view to evade tbe payment of taxes, fail or refuse to give in to tbe assessing officer any bonds, notes, claims, or other evidence of debt which are subject to- assessment and taxation under tbis act, tbe same shall not be recoverable at law or suit in equity before any of tbe courts of tbis State until they have been listed and tbe tax paid thereon, together with any and all penalties prescribed by law for tbe nonpayment of taxes.” Public Laws 1927, cb. 71, sec. 64, under (24) at p. 145.

Before rendering judgment tbe court below allowed plaintiff to list tbe note for tbe tax and pay tbe tax and penalty. We think, under tbe above statute, tbe court below bad tbis power and allowed no recovery until tbe tax and penalty was paid.

In Hyatt v. Holloman, 168 N. C., at p. 388, it is said: “We have said in Martin v. Knight, 147 N. C., 564, tbat a failure to list a solvent credit pursuant to tbe statute does not prevent recovery in an action thereon, but postpones tbe recovery of judgment until it is listed and tbe taxes are paid.”

In Corey v. Hooker, 171 N. C., at p. 232, it is said: “In any event, defendants would have tbe right to pay tbe taxes into court, as they have offered to do if liable therefor.”

Forfeitures are not favored either at law or in equity, and courts are inclined to construe an act of tbis kind so as to prevent a forfeiture. We think tbe evidence on tbe first issue sufficient to be submitted to tbe wry-

No error.