The opinion
MONTGOMERY, J.:
There was a motion made in the court below to dismiss the action on the ground that the note sued on showed on its face that it was executed to com ■ missioners named in a certain action in the nature of a creditor’s bill, in the same court in which the present action is pending, in which the plaintiff here was one of the plaintiffs there, and the Willow Brook Manufacturing Com-, pany and others were defendants, and that therefore proceedings to recover on the note should have been commenced by a motion in that cause. His Honor committed no error in overruling ’the motion. The decree in the creditor’s bill was a final one. The receivers had performed all the duties required of them and they were ordered in the decree to pay over to the plaintiff the funds in their hands after first paying out of the same the entire costs of the proceedings. The defendants’ second exception was to the refusal of his Honor to submit an issue as to the ownership of the note sued on. The court submitted an issue as to whether the defendants were indebted to the plaintiff, and, if so, in what amount, and we are of the opinion that that issue was sufficient for the purpose of enabling the defendants to have the question of the plaintiff’s ownership of the note passed upon by the jury.
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It would have been an easy matter for his Ilo;nor to have instructed the jury that, if they found from the evidence that the plaintiff was not the owner of the note, then they should find for their verdict that nothing was due to her; and the jury would have had no trouble in understanding the matter committed to them.
After the testimony was all in the court charged the jury that it they believed the testimony they should find the issue submitted in favor of the plaintiff. The defendant, in his answer, admitted that he had executed the note for money lent to him and that he had not paid any part of it. He, however, denied that the plaintiff was the owner of the note, but he introduced no sufficient testimony tending to make good the averment.
The plaintiff having produced the note on the trial, and the defendant having admitted its execution, the law raised the presumption that the plaintiff was the rightful owner. And this presumption was not rebutted by the defendant’s denial in his answer.
Pate v.
Brown, 85 N. C., 166 ;
Jackson
v. Love, 82 N. C., 405 .
The defendant also set up in his answer the defence that although he executed the note to the commissioners for money lent to him by them by order of the court during the pendency of the creditor’s bill, he yet had an understanding with the plaintiff at that time that he would not be compelled to pay the note in the event that her claim should be adjudged of prior dignity over the other creditors; and that she did recove*’ in the said creditors’ bill all she claimed. The defendant avers that the consideration upon which the plaintiff’s promise was based was that he should not become one of the parties to the creditors’ bill, as a stockholder, for the purpose of contesting her right of priority over the other creditors. Upon an inspection of the final decree in the creditors’ bill it is plainly to be seen
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that the promise of the plaintiff, if made by her, was against her interest; that she had never received anything of valne from the defendants, and that her claims against the defendants in the creditors’ bill were in law paramount to those of any stockholder. The plaintiff was a married woman at the time of the alleged agreement "with the defendant, and could not make such a contract without the assent of her husband, and that she did not have. There was no error.
Affirmed.