Bush v. Seaton

Perkins, J.

Assumpsit for money had and received, &c., by Seaton and Holman against Bush. Plea, the general issue. Trial by the Court without a jury, and judgment for the plaintiff.

It appears that Seaton and Holman were in possession of a note given by Jabez Harrison to Joshua Bush, which note was without an assignment by indorsement thereon from Bush; that Harrison, who, as did Bush, resided in Fayette county, died; that an administrator, in that county, was appointed upon his estate; that Seaton and Holman, who lived out of that county, enclosed said note to the clerk’s office of Fayette county, to be filed as a claim against said estate; that the estate was settled up, the debts paid, and no one being present at the time to receive the money on this note, it was placed in the clerk’s office, as allowed to Bush, he being the payee. Bush never had pretended to have any claim against the estate of Harrison; but learning that this money was lying in the clerk’s office, as above stated, he came in and obtained it from the clerk. This suit was instituted to recover it back, and sustained below.

The action for money had and received, being an equitable one, will lie in a case like the present.

The question is, were Seaton and Holman bound to prove that Bush had actually sold the note, it not being indorsed by him ? We think not. Possession was prima, facie evidence of ownership, and prima facie entitled the possessors to the money on the note. In this case, the prima fade claim of the plaintiffs is strengthened by the circumstance that Bush never set up any pretence, during the whole period the estate was undergoing settlement, to a demand against it.

We think, on the facts above stated, the judgment below was right.

It may be remarked, that Seaton and Holman were not the first purchasers of the note from Bush, and that it was proved by that purchaser that Bush did sell and receive full pay for the note; and the manner, all regular, *524 in which it passed to Seaton and Holman, was shown; but the evidence was objected to on the ground of interest.

S. W. Parker, for the appellant. J. A. Fay and C. H. Test, for the appellees.

As the evidence was not necessary to justify the judgment given, it is unimportant whether it was correctly admitted or not; and, hence, we shall decide nothing on the point of its admissibility.

Per Curiam.

The judgment is affirmed with 10 per cent, damages and costs.