#### R. S. JONES, Administrator of R. M. WALDROUP, Deceased, v. HATTIE L. WALDROUP.

(Filed 28 February, 1940.)

1. Evidence § 18: Executors and Administrators § 10 — Evidence held relevant as tending to corroborate defendant’s evidence and contentions.

In an administrator’s action against tbe widow of intestate to recover certain stock and a note as assets of tbe estate, testimony of disinterested witnesses of conversations with intestate in which he made statements to the effect that his wife owned or was entitled to the income from a certain business, that he was making investments for her, and that he wanted his property to go to the survivor, *is held*relevant and competent as tending to corroborate defendant’s evidence and contention that the property in question belonged to her because purchased with her own money.

2. Evidence § 32 — Testimony of possession of stock claimed by administrator held competent as being of an independent fact.

In this action by an administrator against intestate’s widow to recover certain stock and a note as assets of the estate, testimony by the widow that she had had possession of the note since it was issued and that she had had possession of the stock for some time prior to intestate’s death, *is held*competent as being testimony of an independent fact, notwithstanding the legal implications from such possession, the note being payable *179to both intestate and defendant and the stock being issued or assigned to both, and further, the complaint having alleged possession of the dioses in action by the widow, the question is academic in this case. O. S., 1795.

3. Estates § 16—

The owners of personalty may create by gift or bilateral agreement a tenancy in common therein with right of survivorship, since O. S., 1735, abolished survivorship in personalty, with an exception relating to partnerships, only when it followed as a legal incident to joint tenancy, and since survivorship in personalty is not against public policy.

4. Same — Assignment and issue of stock by direction of owner to himself or wife held to create tenancy in common with right of survivorship.

Where a husband assigns certain stock to himself or wife, “either or the survivor” by instrument under seal, and surrenders certain other stock originally issued to him to the respective issuing corporations and has the stock transferred on the books of the corporations, and re-issued to himself or wife, and the wife is given possession of the new stock certificates, the assignment, as well-as the transfer of the stock on the books of the corporation followed by surrender of dominion of the certificates of stock to the wife, will create a common ownership of the choses in action with the right of survivorship when it appears that this is the intention of the parties.

5. Corporations § 13a—

An assignment of stock is good as between the parties without registration on the books of the corporation, and the legal title may be perfected in the assignee by registry and the delivery of the certificates.

6. Same—

Where the holder and owner of stock surrenders the certificates to the corporation and directs the corporation to transfer same on its books, the transferee acquires title, which is perfected by the surrender or delivery of the new certificate to him. C. S., 1164.

7. Estates § 16—

When the owner of stock has same transferred on the books of the corporation and re-issued to himself “or” wife, the word “or” may be construed “and” when necessary to effect the apparent intent of the parties to create a joint interest in the personalty with right of survivor-ship.

8. Evidence §§ 7, 8—

While the burden of proof remains on plaintiff throughout the trial to establish his cause of action, the burden is on defendant to establish affirmative defenses relied on by him to defeat the right of recovery.

9. Appeal and Error § 8—

An appeal will be determined in accordance with the theory of trial in the lower court.

10. Executors and Administrators § 10: Trial § 29c — Instruction held for error in failing to charge that burden was on defendant to prove affirmative defense.

In this action by an administrator against intestate’s widow to recover certain stock as assets of the estate, plaintiff’s evidence disclosed that *180intestate had assigned certain of the stock to himself or wife, and had directed that the other stock be transferred on the books of the corporations to himself or wife, that the stock was re-issued in accordance with his instructions and plaintiff alleged that the widow had possession of the choses in action. The case was tried on the theory that the assignment and transfer of the stock created an agency which was terminated by intestate’s death. Defendant widow claimed that the stock belonged to her by reason of the fact that it was bought with her own individual money. *Held:*An instruction to the effect that the burden was on plaintiff to establish title, that defendant did not. have to prove title, and that if the jury found from the evidence that the stock represented proceeds of an investment made by intestate for defendant to answer the issue of ownership against plaintiff administrator, *is held*erroneous upon the theory upon which the case was tried in failing to place any burden on defendant to xsrove the affirmative defense relied on by her.

11. Executors and Administrators § 10: Bills and Notes § 25 — Possession of note by payee raises presumption of title.

In this action by an administrator against intestate’s widow to recover a certain note as an asset of the estate, it appeared that the note was payable to intestate or the widow and that it was in the widow’s possession. *Held:*In the absence of evidence of superior title, an instruction that if the jury believed the evidence to answer the issue of ownership of the note in favor of defendant widow is without error.

Appeal by plaintiff from *Pless, J.,*at December Term, 1939, of MacoN.

Partial new trial.

The plaintiff administrator claimed the ownership and sued for the recovery of certain certificates of stock, to wit, (a) a certificate of stock (No. 993) in the Mechanics Perpetual Building & Loan Association, of Charlotte, North Carolina, for 50 shares, payable to R. M. 'Waldroup or H. L. Waldroup; (b) a certificate (No. 882) for 35 shares of stock in the Mutual Building & Loan Association, of Charlotte, North Carolina, payable to R. M. Waldroup or H. L. Waldroup; (c) (d) (e) (f) (g) and (h), Certificates Nos. J-4, 229, 754, 755, 1536, 2474, for an aggregate of 74 shares of stock in the Blue Ridge Building & Loan Association, of Asheville, North Carolina, of the par value of $100.00, all payable to R. M. Waldroup; and (i) one note of the face value of $416.35, made payable to R. M. Waldroup or Hattie L. Waldroup.

In his complaint the administrator alleges: “R. M. Waldroup constituted his wife, Hattie L. Waldroup, his agent to withdraw or otherwise dispose of the stock in the Blue Ridge Building & Loan Association hereinbefore set forth, by a paper writing as follows: Tor Yalue Received, I hereby transfer, set over and assign to R. M. Waldroup, or Mrs. Hattie L. Waldroup, either or the survivor, all my right, title and interest in and to the following certificates of stock of Blue Ridge Building & Loan Association: Certificate No. 42, for 10 shares in series 65; Certificate No. 299, for 6 shares dated January 1, 1931; Certificate No. *181754, for 2 shares dated January 1, 1932; Certificate No. 755, for 2 shares dated January 1, 1932; Certificate No. 1536, for 40 shares dated October 1, 1933; Certificate No. 2474, for 10 shares in series No. 64, a total of seventy shares, and authorize the Blue Ridge Building & Loan Association to make the necessary transfer on the books of the Association. Witness my hand and seal, this 29th day of February, 1936. R. M. Waldroup (Seal). Witness :.’ ” All of these items are alleged to be in possession of defendant.

In her answer the defendant denies the title of the administrator to the items set up and made the subject of his suit, and avers that she is the sole beneficial owner thereof, not merely by virtue of the conveyance set out in the complaint and there construed as creating an agency, but by reason of the fact, as she alleges, that the stocks and note in dispute were purchased with her own individual money.

The complaint was amended to set up that the sole distributees of the estate of Waldroup were his wife and his mother.

Upon the trial the plaintiff introduced evidence substantially as follows:

Mr. E. Y. Keesler, an employee of the Mutual Building ■& Loan Association, of Charlotte, identified the certificates of stock issued by that association and these were introduced in evidence.

Mr. Keesler further testified that the certificate identified, payable to R. M. Waldroup or H. L. Waldroup, replaced several prior certificates issued to R. M. Waldroup, and that there was no exchange of funds at the time it was issued; that he did not handle personally the transaction by which the first certificates were issued, and that the records pertaining to the certificates which he identified were not made under his direction and supervison, but that they were handled by a Mr. Long.

Witness further testified that about 22 January, 1935, all these numbered stock certificates, five of them, were sent to the association by Dr. Waldroup for exchange by mail, with instructions that one new certificate be issued in the total sum of $3,500.00, the same aggregate amount, to R. M. Waldroup or II. L. Waldroup. The effective date of that transfer was 1 September, 1934, and in lieu of these five certificates there was issued certificate 882 for 35 shares of stock, which is still outstanding. The checks for dividends were made payable to R. M. Wal-droup or H. L. Waldroup. No further correspondence was found with reference to the matter.

Mr. T. G. Barbour, employed as secretary and treasurer by Mechanics Perpetual Building & Loan Association, testified, in substance, that about 31 December, 1929, the corporation sold and issued shares of stock to R. M. Waldroup and issued six certificates, which witness referred to in detail; that afterward the association called in these shares “for the *182purpose of receiving cash or a new certificate bearing interest at a lower rate.” Under this call Dr. Waldroup surrendered these certificates and a new certificate for 50 shares (No. 993) was issued to R. M. Waldroup or H. L. Waldroup, dated 1 October, 1935. “Dr. Waldroup was notified of the desire of the corporation to call in the certificates by form letter. I do not have the original or duplicate original of that letter. In response to the form letter sent to stockholders, the company received a letter from Dr. Waldroup. The letter is as follows: 'Bryson City, N. C. 12/16/35. Mechanics Perpetual B. & L. Assoc. Please find enclosed my stock certificates for change in interest rate as per your letter. Please write the new stock to “R. M. or H. L. Waldroup.” I want both names so if anything should happen the other would cash in without the usual red tape. Tours truly, (Signed) R. M. Waldroup.’ ” The change in the certificate was made in pursuance to this letter. Dr. Waldroup had been the payee in the former certificates which this replaces.

J. P. Brown testified for plaintiff that he was receiver of the Blue Ridge Building & Loan Association and had custody of the books extending back to 1929, in which is recorded the shares of stock issued, and to whom. That the record showed the original shares of stock issued to R. M. Waldroup, except certain shares of stock issued to others, as, for instance, Mrs. Mona Baskeete, and transferred to Waldroup.

Plaintiff introduced the stubs of the certificates originally issued to Waldroup.

Mrs. E. H. Bailey testified for plaintiff that she was employed by the receiver of the Blue Ridge Building *&*Loan Association and had worked for the association itself, prior to the receivership, continuously down to the time of the receivership. The witness denied any personal knowledge of the transactions save that which was a matter of record, but testified as to certain of these certificates issued to Dr. Waldroup in the year 1927, and that the records showed that Dr. Waldroup had procured a loan of $6,000 on that stock. In October, 1933, the $10,000 of stock was canceled, the $6,000 stock loan repaid, and $1,000 stock issued to Dr. Waldroup. Witness testified that she was personally acquainted with Dr. Waldroup and did not know of any other person having anything to do with the stock. She testified that dividends were paid to Dr. Waldroup. Witness testified that she was witness to the paper executed by Mrs.' Baskeete to Dr. Waldroup transferring certain shares of stock. The paper writing contained the entry that the stock was payable to “R. M. Waldroup or Mrs. Hattie L. Waldroup, either, or the survivor.” Continuing, on cross-examination, this witness testified that pursuant to this paper writing by Dr. Waldroup, and witnessed by herself, she transferred the stock on the books in accordance with his direction.

*183Tbe plaintiff lodged numerous exceptions to tbe cross-examination, in wbicb tbe witness was permitted to say tbat sbe transferred tbe stock upon tbe books. Witness further testified tbat all tbe stock was fully paid for.

Tbe defendant’s evidence may be summarized as follows:

Mrs. Hattie L. Waldroup testified, over objection of tbe plaintiff, tbat sbe bad been in tbe possession of Certificate No. 882 in tbe Mutual Building & Loan Association of Charlotte since some time in January, 1935, and tbat sbe kept it in her own private desk. Sbe testified to tbe same effect as to Certificate No. 993, issued by Mechanics Perpetual Building & Loan Association of Charlotte, wbicb bad been introduced in tbe evidence. As to tbe certificates of stock issued by tbe Blue Ridge Building & Loan Association, sbe testified tbat sbe bad bad them in her possession since soon after they bad been issued and bad kept them in her private desk at borne. As to tbe note wbicb tbe plaintiff sought to recover, tbe witness testified tbat sbe had bad it in her possession since it was issued.

Witness further testified tbat since tbe year 1927 sbe owned and operated a business in Bryson City known as tbe “Ice Plant business,” and tbat her net annual income was from $2,500.00 to $3,000.00 a year, and tbat sbe still owned tbe ice plant.

E. H. Corpening testified for tbe defendant tbat be bad lived in Bryson City since 1912 and was acquainted with R. M. Waldroup from tbat time until bis death; tbat be had bad a conversation with Dr. Wal-droup concerning bis business affairs on two occasions; first, during tbe summer of 1934. Tbat conversation took place in tbe office of tbe register of deeds of Swain County at tbe time witness was chairman of tbe board of county commissioners.

Over objection, tbe witness was permitted to testify tbat tbe conversation principally concerned some deeds tbat transferred property; tbat witness bad drawn two different deeds for Dr. Waldroup. At this time, Dr. Waldroup made certain statements concerning previous deeds. “He mentioned a deed to Mrs. H. L. Waldroup in 1927. He mentioned concerning tbat deed that tbe reason for tbat deed was be wanted bis property to go to tbe survivor, and we drew two deeds tbat way. He talked to me concerning the lee Plant property, and tbe income from the Ice Plant. He said tbe income from it, wbicb was two or three thousand dollars a year, went to Mrs. Waldroup. He did not state definitely who owned it, but tbe income from it was hers.”

Over further objection by plaintiff, tbe witness testified tbat Dr. Waldroup mentioned two blocks of building and loan stock, one the Charlotte stock and tbe other tbe Asheville stock, and stated tbat one was in tbe name of R. M. or H. L. Waldroup and tbe other be bad made *184an assignment for. There was objection to this on tbe part of the plaintiff. The witness testified that Dr. "Waldroup discussed bis affairs with him frequently and said that he wanted the stock to go to the survivor.

The other conversation was about Thanksgiving, 1936. At this time, also, Dr. Waldroup mentioned the building and loan stock, making practically the same statement with regard thereto and supplementing this with some reference to his state of health. Witness testified that he saw Dr. Waldroup frequently and for a large part of the time talked to him every day.

The plaintiff entered objection to the testimony concerning conversations with Dr. Waldroup.

Mrs. Maude Hunter testified for the defendant substantially that she had lived in Bryson City forty-six years and had talked with Dr. Wal-droup before his death. Over objection she was permitted to state that Dr. Waldroup told her that he was investing in the building and loan association of Asheville, Blue Ridge Building & Loan Association, and Building & Loan Association of Charlotte, for Mrs. Waldroup. She testified that the conversation was brought up just after her husband died, about 1930, at which time witness’ mother had money to invest in building and loan. She got Dr. Waldroup to write letters for her. Plaintiff moved to strike out all of this testimony.

At the close of all the evidence, plaintiff moved for a directed verdict in favor of the plaintiff on the issues tendered, the motion was denied, and plaintiff excepted.

The following issues were submitted to the jury without objection and answered as appears:

“1. Is the plaintiff the owner and entitled to the possession of 50 shares of stock in Mechanics Perpetual Building & Loan Association of Charlotte, N. C., evidenced by Certificate No. 993, bearing date on or about October 1, 1935, payable to R. M. Waldroup or H. L. Waldroup, as alleged in the complaint? Answer: No.’

“2. Is plaintiff the owner and entitled to the possession of 35 shares of stock in Mutual Building & Loan Association, of Charlotte, N. C., evidenced by Certificate No. 882, bearing date on or about January 22, 1935, payable to R. M. Waldroup or II. L. Waldroup, as alleged in the complaint? Answer: No.’

“3. Is the plaintiff the owner and entitled to possession of the 70 shares of stock in the Blue Ridge Building & Loan Association, of Ashe-ville, N. C., represented by Certificate J-42 for 6 shares, Certificate No. 229 for 6 shares, Certificate No. 765 for 2 shares, Certificate No. 755 for 2 shares, Certificate No. 1536 for 40 shares, and Certificate No. 2474 for 10 shares, as alleged in the complaint? Answer: No.’

“4. Is the plaintiff the owner and entitled to the possession of a note *185for $416.35, dated on or about December 9, 1935, executed by T. W. Porter, administrator of the estate of J. W. Porter, deceased, to Dr. E. M. Waldroup or Hattie L. Waldroup, as alleged in the complaint? Answer: No.’”

On these issues the court, amongst other instructions to the jury, charged as follows: “The court instructs you that the burden is on the plaintiff, the administrator, to establish his ownership to the stock, and that the defendant does not have to prove she is the owner, but that the plaintiff must affirmatively establish that he is the owner. And if from the evidence you find that the stock was the proceeds of an investment made by Dr. Waldroup for Mrs. Waldroup, then she would be the owner of the stock regardless of the name to whom it was made out, and then in that event it would be your duty to answer that issue No.’ finding that the property did not belong to the administrator, but to Mrs. Hattie L. Waldroup.”

After instructing the jury that the fact that the original issues of stock were made to Waldroup would, in the absence of rebutting evidence, raise the presumption that he was the owner, the court charged: Now you will notice that in giving you that instruction that the court made the statement that in the absence of rebutting evidence or nothing else appearing, it would be your duty to make certain findings. The court instructs you that if you should find there is rebutting evidence or that something else appears, to wit, if you shall find this stock was the proceeds of the moneys of Mrs. Waldroup which was invested for her by her husband, Dr. Waldroup would in that event not be the owner of it, and it would be your duty to answer the issue No.’ ”

Similar instructions were given upon the other issues.

All issues were answered in favor of defendant; thereupon, judgment was entered in favor of the defendant, and plaintiff appealed, assigning-error.

G. *A. Jones, B. C. Jones, and Gray & Christopher for plaintiff, appellant.*

*Edwards & Leatherwood for defendant, appellee.*

Seawell, J.

A careful scrutiny of the evidence to which plaintiff ■objected fails to disclose reversible error.

The two more serious challenges to the introduction of that evidence are directed to the testimony of E. H. Corpening and Mrs. Maude Hunter, who testified as to conversations had with Dr. Waldroup with reference to the stock now sought to be recovered from this defendant. In view of the construction which the court must give to the action of Dr. Waldroup in causing the transfer of stock in some of the several *186associations concerned and of tbe paper writing admitted by both, sides to have been executed by Dr. Waldroup transferring stock to bimself and wife jointly, it seems clear to us that the statements of Dr. Wal-droup disparaging to his own exclusive ownership are strongly corroborative of the defendant’s position with regard to these disputed transactions and are relevant and admissible. *Wilson v. Williams,*215 N. C., 407, 2 S. E. (2d), 19; *Wilder v. Medlin,*215 N. C., 542, 2 S. E. (2d), 549.

It has also been suggested that Mrs. Waldroup was incompetent *to*testify as to the possession of the several certificates of stock and of the note in controversy as being excluded under the provisions of 0. S., 1795, as an interested party. This is upon the theory that such statement implied a delivery of the stock to the witness by Dr. Waldroup himself, such delivery constituting a personal transaction between the two having an important bearing on the transfer of title.

Although there are authorities supporting such a position (see 70 C. J., 313), the better opinion is clearly in favor of the competency of such evidence. Citation *supra. McCombs v. McCombs,*204 Wis., 293, 234 N. W., 707. But it is not an open question in this State. In *Thompson v. Onley,*96 N. C., 9, 13, where the issue was between the defendant and the administrator of the deceased person to whom an unendorsed note in defendant’s possession is payable, and where, of course, the question of delivery was paramount, defendant was permitted to testify that the note was in her possession at the commencement of the action. P assing on this the Court said: “It cannot be seen that the only source of the witness’ information was a personal transaction or communication between her and the deceased.” In the case at bar the fact of possession implies, perhaps even more strongly, that the possession had been derived from the corporations who issued the stock, and as to the note, from the maker of it, since it was payable to either plaintiff’s intestate or defendant.

The question, however, seems to be academic in the case at bar, since the fact of possession is not in dispute. The plaintiff brings an action for the recovery of the specific items, and in his complaint alleges the possession of the defendant. The inference of delivery of the certificates of stock and note by Dr. Waldroup is as strongly raised by the admitted facts as it would be by the testimony of the witness alone.

Under the *Onley case, supra,*the testimony must be regarded as an independent fact. See comparison of cases in *Wilder v. Medlin, supra; Sutton v. Wells,*175 N. C., 1, 3, 94 S. E., 688; *In re Will of Saunders,*177 N. C., 156, 98 S. E., 378.

There are exceptions to the charge, relating to the burden of proof, with which we cannot deal adequately without attempting to remove *187from the case some misapprehension of law respecting the theory on which the case was tried.

It was understood by the plaintiff, and the theory adopted by the •court, without much protest on the part of the defendant, that the paper writing in which Dr. Waldroup purported to convey the Blue Ridge stock to himself and wife, with the rights of survivorship, as well as his conduct in requiring that new issues of .stock in the other building and loan companies be made to himself and wife, with an indication that he intended survivorship, had no other effect than to create an agency in Mrs. Waldroup, terminated by the preceding death of her husband. This view is not consonant with the facts, or with a proper interpretation of either the paper writing referred to or the transaction by which Waldroup caused the new issues of stock to be made to himself and wife; and that view is not supported by the authorities cited in plaintiff’s brief.

C. S., 1735, abolished survivorship in joint tenancy, with an exception as to partners, so that the surviving partner might apply the partnership assets to the partnership debts. After this has been accomplished, the remainder goes, under the Statute of Distributions, to those entitled.

But this statute abolished survivorship only where it follows as a legal incident to an existing joint tenancy. It did not, and does not, prevent persons from making agreements as to personalty such as to make the future rights of the parties depend upon the fact of survivorship. *Taylor v. Smith,*116 N. C., 531, 535, 21 S. E., 202. Since there is nothing in public policy to prevent it, the right should be upheld.

Defendant cites in the brief *Jones v. Fullbright,*197 N. C., 274, 148 S. E., 229, and *Nannie v. Pollard,*205 N. C., 362, 171 S. E., 341, both of which cases concern a joint checking account at the bank; and there is nothing in the evidence in those cases to indicate that the ownership of any part of the account had been transferred from the husband. Such an account might run from one cent to millions, and in its fluctuation the original items of deposit may have disappeared in the process of checking many times. The cases are not analogous to the one at bar. The other cases *cited*— Graham *v. Graham,*9 N. C., 322; *Morrow v. Williams, 14*N. C., 263; *Dail v. Jones,*85 N. C., 221; *Outlaw v. Taylor,*168 N. C., 511, 84 S. E., 811; *Speight v. Speight,*208 N. C., 132, 179 S. E., 461; *Nixon v. Nixon,*215 N. C., 377, 1 S. E. (2d), 828 — all relate to attempts *totidem verbis*to reserve a life estate in personalty with remainder over. This has nothing to do with a joint tenancy in personalty with survivorship created by contract — either bilateral agreement or gift. *Taylor v. Smith, supra.*

*We*construe the conveyance, admittedly made by Dr. Waldroup, with reference to the Blue Ridge stock, as creating a common ownership in *188the property which is its subject until one of them should die, with the right of survivorship.

As to the other corporations involved, just as in all corporations, the title of the stock might be by assignment, without reference to registry on the books of the company — which is good *inter yaries*— following which the legal title might he perfected by such registry and the delivery of the certificates. *Havens v. Bank,*132 N. C., 214, 43 S. E., 639; *Cox v. Dowd,*133 N. C., 537, 45 S. E., 864. But this is by no means an exclusive method of transfer. It may be done by direction of the holder and owner of the stock upon the books of the company which, followed by delivery, or a surrender of the dominion of the certificates to the transferee, would make the title complete. C. S., 1164; *Mitchell v. Realty*Co.,’169 N. C., 516, 86 S. E., 358; *Bleakley v. Candler,*169 N. C., 16, 84 S. E., 1039; *Richardson v. Emmett,*61 App. Div., 205, 70 N. Y. S., 546, 170 N. Y., 412, 63 N. E., 440; *Chicago Title & Trust Co. v. Ward,*332 Ill., 126, 163 N. E., 319.

The position of the defendant here is even stronger, because Waldroup required the issue of new stock to himself or wife, which was so registered upon the hooks of the company, under his instruction, under circumstances which might be evidence of a gift *inter vivos,*creating an estate for the common enjoyment of himself and wife, with the right of survivorship upon the death of one of them.

In all these matters we are dealing with certificates of stock issued to plaintiff’s intestate and Hattie L. Waldroup. We use the term “and” advisedly, because consistently with the apparent intention of the assignment appearing in the record, the letters and conduct of Dr. Waldroup in having the stock issued that way and so registered upon the books of the corporations, the disjunctive (used no doubt to emphasize the sur-vivorship) “or” may be read as the conjunctive “and.” *Ham v. Ham,*168 N. C., 487, 84 S. E., 840; *Pilley v. Sullivan,*182 N. C., 493, 109 S. E., 359; *Richmond v. Woodward,*32 Vt., 833, 838; *Litchfield v. Cudworth,*32 Mass., 23, 27.

Under this evidence and its legal implications, it is clear that the plaintiff was not entitled to the instruction that if the jury believed the evidence they should find in his favor.

On the issues relating to the ownership and right to possession of the stocks in the building and loan associations, the judge gave instructions to the jury, of which the following is typical: “The court instructs you that the burden is on the plaintiff, the administrator, to establish his ownership to the stock, and that the defendant does not have to prove she is the owner, but that the plaintiff must affirmatively establish that he is the owner. And if from the evidence you find that the stock was the proceeds of an investment made by Dr. Waldroup for Mrs. Wal-*189droup, then sbe would be tbe owner of tbe stock regardless of tbe name to whom it was made out, and tben in tbat event it would be your duty to answer tbat issue ‘No.’ finding tbat tbe property did not belong to tbe administrator, but to Mrs. Hattie L. Waldroup.” Tbe plaintiff complains tbat tbis instruction placed a greater burden upon bim than tbe law requires.

It is true tbat tbe burden of an affirmative issue, such as those submitted to tbe jury in tbe instant case, is upon tbe plaintiff and does not shift during the course of tbe trial. *Everett v. Mortgage Co.,*214 N. C., 778, 1 S. E. (2d), 109; *Benner v. Phipps,*214 N. C., 14, 197 S. E., 549; *Williams v. Ins. Co.,*212 N. C., 516, 193 S. E., 728; *Stein v.*Levins, 205 N. C., 302, 171 S. E., 96; *Hunt v. Eure,*189 N. C., 482, 127 S. E., 593. But tbe burden is upon one who asserts an affirmative plea to establish it by appropriate proof. *Benner v. Phipps, supra; Everett v. Mortgage Co., supra; Mitchell v. Whitlock,*121 N. C., 166, 28 S. E., 292; *Mayo v. Jones,*78 N. C., 402.

Tbe trial judge placed tbe claim of tbe plaintiff and tbe claim of tbe defendant in apposition in tbis instruction, and tbe jury may have been led to believe tbat it was incumbent upon tbe plaintiff to overcome tbe evidence of tbe defendant as to her affirmative plea by preponderating proof without regard to any burden in that respect which tbe law of evidence placed upon tbe defendant.

Tbis case, as we have seen, was tried upon tbe theory tbat tbe assignment of tbe Blue Ridge stock, and tbe acts of Dr. Waldroup in causing new stock to be issued to himself and wife, and so registered on tbe books of tbe corporations of tbe two other building and loan associations, created merely an agency in Mrs. Waldroup, which terminated at tbe death of Waldroup. Under tbis theory, tbe only avenue of approach to a consideration of tbe subject permitted tbe jury was toward a consideration of tbe equitable claim asserted by Mrs. Waldroup. However erroneous tbis theory was, it is impossible for us now to say what tbe jury might have done if tbe case bad been tried otherwise; and upon tbe theory adopted, the instruction was erroneous and confusing as to tbe burden of proof.

It is to be observed here tbat tbe same evidence of plaintiff which was considered to establish bis *prima facie*title to tbe stocks also disclosed their assignment by Dr. Waldroup and their transfer’upon tbe books of tbe corporation and new issue of stock according to bis instructions. Tbe defendant made no appropriate motion with regard to tbe effect of tbis evidence legally considered, and we make no decision here as to its sufficiency in establishing plaintiff’s title. If it merits submission to tbe jury, the burden which rests upon the plaintiff with regard to it should be *190properly explained, as well as the burden which rests upon the defendant to support her affirmative claim with the requisite degree of proof.

But the result of the trial with regard to the note should not be disturbed.

The plaintiff contends that the judge erroneously instructed the jury that the possession of this note raised a presumption of ownership which he says is not true as against a payee, and cites *Hayes v. Green,*187 N. C., 776, 123 S. E., 7. In the cited case the unendorsed note payable to plaintiff was in the hands of a holder who was not payee. In this case both Mrs. Waldroup and plaintiff’s intestate were payees, and the plaintiff has shown no superior right of ownership or possession. The judge was correct in his instruction to the jury that if they believed the evidence they should find in favor of the defendant.

For the errors pointed out, the plaintiff is entitled to a new trial, with respect to the stocks mentioned in the first three issues, and it is so ordered. With respect to the fourth issue, involving the note, we find no reversible error.

Partial new trial.