Browning v. Porter

• Decision Date: 19 February 1895
• Court: North Carolina Supreme Court
• Parties: BROWNING et al. v. PORTER.

20 S.E. 961

116 N.C. 62

BROWNING et al.

v.PORTER.

Supreme Court of North Carolina.

Feb. 19, 1895.

Chattel Mortgage — Lien — Enforcement as against Third Persons.

Where a surety on a purchase-money note, which retains title to the chattel for which it is given, pays it without having it assigned to a trustee for his benefit, and the purchaser, after mortgaging it, delivers to him the chattel, the mortgagee has the first lien.

Appeal from superior court, Halifax county; Graves, Judge.

Action of claim and delivery by B. R. Browning & Son against J. R. Porter. From a judgment for plaintiffs, defendant appeals. Affirmed.

It is agreed: That on November 19, 1887, one P. G. Solomon purchased a bay mare from W. M. Perkins, Jr., for the sum of $100 (said mare was named "Sally Morgan"); and in payment therefor he executed his note under seal, with one L. Vinson as surety, for said amount, payable the 1st of November, 1888, bearing interest at 8 per cent. from date. Said note retained title to the mare until the whole of the purchase money was paid, and was duly recorded in the office of the register of deeds on March 30, 1888, in book 81, p. 231. On December 7, 1888, the surety, Vinson, upon a demand from said Perkins, paid Perkins $50, and the same is credited upon the note. Thereafter, Perkins transferred the note to C. W Garrett & Co.; and on November 9, 1889, Garrett & Co. transferred the note, without recourse, to Vinson, the surety. Said Solomon paid nothing on the note. That said Solomon failed to pay Vinson anything whatever on the note, and afterwards delivered to him the said mare under said note, retaining title, and thereafter he sold the mare to one G. E. Matthews for the sum of $45, and Matthews sold her to the defendant for $50, and she is now in the possession of the defendant. On February 6, 1889, the said Solomon, to secure certain advances to be made to him by the plaintiff to the amount of $80, to be made during the year 1889, executed to said plaintiff a lien and chattel mortgage, conveying one red cow, one single-horse cart, one bay mare, white face, named "Sally Morgan, " valued at $50. No part of said advances has been paid. The mortgage was duly recorded on February 14, 1889, in book 85, page 377, in the office of the register of deeds. That, at the time of the execution of said chattel mortgage to the plaintiff, said Solomon had the possession of the said mare. Judgment: "It is considered by the court that the plaintiff recover of the...