Swan v. . Carawan
Supreme Court of North Carolina
Appeal by plaintiff from Peebles, J., at October Term, 1914, of Pam-lico. Proceeding to sell land for assets, beard in tbe Superior Court upion appeal from tbe clerk. Tbe only issue submitted to tbe jury was as to tbe indebtedness of tbe intestate. Tbe plaintiff introduced a note and a witness wbo testified tbat be saw tbe deceased execute it.
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Appeal by plaintiff from Peebles, J., at October Term, 1914, of Pam-lico. Proceeding to sell land for assets, beard in tbe Superior Court upion appeal from tbe clerk. Tbe only issue submitted to tbe jury was as to tbe indebtedness of tbe intestate. Tbe plaintiff introduced a note and a witness wbo testified tbat be saw tbe deceased execute it. Tbe defendant relied upon tbe plea of payment, and introduced a witness, Mr. "Watson, wbo testified tbat be saw tbe deceased pay tbe indebtedness. On cross-examination tbis witness, Watson, testified tbat be did not consider tbat be owned tbe land yet…
1Opinion of the CourtAlleN, J.
"When the plaintiff proved the-execution of the note by the intestate, he was entitled to have the issue of indebtedness answered in hfs favor unless the defendant established his plea of payment, and the burden of proof upon this plea was on the defendant. Guano Co. v. Marks, 135 N. C., 59.
It was therefore error to charge the jury that the burden was on the plaintiff to prove that the note had not been paid.
The witness, Watson, upon whom the defendant relied in support of his plea, admitted on cross-examination that he held a mortgage on the land which the plaintiff was seeking to sell, and…
2Cases cited1 opinion
- Guano Co. v. . MarksSupreme Court of North Carolina · 1904
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