Blakely v. Patrick

• Decision Date: 30 June 1870
• Court: North Carolina Supreme Court
• Parties: L. W. BLAKELY, Assignee in Bankruptcy of S. T. JONES & CO. v. JOHN PATRICK, Adm'r. of S. T. STILLEY.

67 N.C. 40

L. W. BLAKELY, Assignee in Bankruptcy of S. T. JONES & CO.

v.JOHN PATRICK, Adm'r. of S. T. STILLEY.

Supreme Court of North Carolina.

June Term, 1870.

To maintain an action to recover the possession of personal property, whether resort is had to the provisional remedy of the Code of Procedure or not, the plaintiff must show title or a right to the present possession of the property sued for, which must be specific and be identified by a sufficient description.

A mortgage by a buggy-maker of “ten new buggies,” without delivery of possession, he having more than ten on hand at the time, was ineffectual to pass title to any particular buggies or to any interest in the buggies on hand; and the mortgagee cannot maintain an action for the recovery of ten new buggies in the possession of the mortgagor, or his personal representative. A fortiori is this the case, if such buggies were not the same that were on hand at the date of the mortgage.

[ Jarman v. Ward, 67 N. C. O'Neal v. Baker. 2 Jon. 168. Jones v. Morris, 7 Ire. 370. Waldo v. Belcher, 11 Ire. 609, and Powell v. Hill, 64 N. C. 169, cited and approved.]

Civil action tried before Clarke, J., at Spring Term, 1872, of the Superior Court of GREENE.

The action was commenced in January, 1869, by S. T. Jones & H. T. Bennett, under the name of S. T. Jones & Co., as plaintiffs, to recover possession of “ten new buggies” from the defendant as administrator of S. T. Stilley deceased; and they having complied with the provisions of Tit. IX. chap. 2, of the C. C. P., nine new buggies found in the defendant's possession were delivered to them by the sheriff. The plaintiffs became bankrupts, and S. M. Blakely, having been appointed their assignee, was made party plaintiff as such. He claimed title under a mortgage, executed by Stilley to S. T. Jones & Co., in July 1867, which purported to convey, with other personal property, “““ten new buggies,” to secure certain notes which were payable January 1st, 1868; and the mortgage was offered in evidence. The complaint goes on to state that Stilley was a manufacturer of buggies, dependent upon his trade for support, and the property conveyed in the mortgage was left with him to enable him to prosecute his business, that he died in November 1867, and the defendant, soon thereafter being appointed his administrator, “took into his possession the entire personal estate of the said S. T. Stilley, amongst which were the ten new buggies mentioned in said mortgage.”

The defendant's answer, admitting the other allegations of the complaint, alleges that all the buggies on hand at the execution of the mortgage (more than ten in number) had been sold by Stilley, and that the buggies claimed by the plaintiffs were made afterwards and not embraced in the mortgage. It denied that title to any particular buggies passed under the mortgage. Debts of higher dignity than the plaintiff's were also set up as a defence. It was in evidence on the trial that the mortgage was executed in Newberne, and that the plaintiff at the time had fifteen new buggies in his shop in Greene County, where he lived.

His Honor in his charge told the jury that the action was “an action for damages for the conversion of ten new buggies by the defendant,” that under the mortgage he could claim ten buggies and no more, that Stilley became the trustee or stakeholder of Jones & Co., the mortgagee, and that the defendant was liable for the value of such of the buggies as went into his possession, with interest from January 1st, 1868. The defendant's counsel asked his Honor in writing for this instruction: “If the jury believe there were more than ten new buggies in the lot in Stilley's possession at the time the mortgage was made, and the ten were not separated by Stilley and Jones from the rest of the lot, then the plaintiffs cannot recover.

His Honor refused to give the instruction.

The jury returned a “verdict finding all issues in favor of the plaintiffs and assessed his damages at $127,25.” The Court gave judgment accordingly and the defendant appealed.

Battle & Son, for the plaintiff .

Smith & Strong, for the defendant .

PEARSON, C. J.

This is an action to recover the possession of personal property, to wit, ten new buggies--and damages for the detention. It appears by the record proper, that the provisional remedy was resorted to. Under it the sheriff seized nine new buggies that were of the estate of the intestate of defendant, and delivered them to the plaintiff. The judgment is that the plaintiff retain possession of the said property and also recover $127, for damages and costs.

This reference to the record proper is made to prevent a confusion of ideas, that might be caused by the circumstance, that in the statement of the case his Honor says, in charging the jury; “This is an action for damages, for the conversion of the ten new buggies by the defendant.” An action to recover the possession of personal property, where the provisional remedy is not resorted to is in effect...