Clayton v. Hester

• Decision Date: 31 January 1879
• Citation: 80 N.C. 275
• Court: North Carolina Supreme Court
• Parties: JOSEPH CLAYTON v. A. J. HESTER.

80 N.C. 275

JOSEPH CLAYTON

v.A. J. HESTER.

Supreme Court of North Carolina.

January Term, 1879.

CIVIL ACTION tried at Spring Term, 1878, of PERSON Superior Court, before McKoy, J.

The facts are stated by THE CHIEF JUSTICE. Verdict and judgment for plaintiff. Appeal by the defendant.

Messrs. E. G. Haywood and A. W. Tourgee, for plaintiff .

Messrs. Merrimon, Fuller & Ashe, for defendant .

SMITH, C. J.

The plaintiff claims title to the horse, for the recovery of which the action is brought, under a contract of purchase from one B. V. Riggs to whom he alleges the plaintiff had previously sold the horse. On the trial the following paper writing was exhibited in evidence:

$150.00. One day after date I promise to pay to Joseph Clayton the full and just sum of one hundred and fifty dollars for one bay horse bought of him, and to secure him the horse stands his own security. Witness my hand and seal this the 29th of March, 1873, (signed) B. V. Riggs [seal] and witnessed by W. A. Mebane.

The plaintiff as a witness on his own behalf testified that the contract was in contemplation of the parties at the time of making it, a conditional sale; and there was no evidence conflicting with this statement.

The defendant asked the court to instruct the jury that the contract was in law a lien or mortgage, and as against the defendant a purchaser for value, void for want of registration. The court declined to give the instruction, and charged the jury that upon the evidence it was a conditional sale only.

There are several cases in our reports where the court has been called on to put a construction upon instruments very similar to this. We will briefly refer to them. In Ellison v. Jones, 4 Ire. 48, the note was in these words: “Five months after date I promise to pay Henry Ellison the sum of fifty dollars for a horse, said horse to be said Henry Ellison's till paid for,” and it was held to be a conditional sale. In Gaither v. Teague, 7 Ire. 460, a bond was given as follows: “Know all men by these presents that I, Edward Teague have this day bargained for a sorrell filly with W. Gaither, which I want to stand as security until I pay him for her. I also promise to take good care of her.” Parol evidence was given of the transaction, and the court charged the jury that the instrument was not upon its face a mortgage, but if Gaither transferred the property in the filly to Teague, and that afterwards they came to an agreement to secure the price and for this purpose Teague made the instrument, it would be deemed a mortgage and void. The jury found for the plaintiff and this court approved the charge, and RUFFIN, C. J., delivering the opinion says: “Under the circumstances of the case this court is of opinion that His Honor was right in so holding and in leaving it to the jury to determine its character as they might find the facts, whether it was given at the instance of Teague or before or after the sale had been completed by a contract and delivery.”

In Ballew v. Sudderth, 10 Ire., 176, at the foot of the note were appended these words: “It is agreed and understood that a sorrel mare for which the above note is given is to remain the property of P. Ballew until said note is fully paid.” “We concur with His Honor,” says PEARSON, J., “that the bill of sale was not a mortgage, but a sale to take effect if the price was paid.”

In Parris v. Roberts, 12 Ire., 268, the words were these: “This day sold to W. D. Jones one gray filly for one hundred and fifteen bushels of corn which the said filly stands to the said Daniel Parris as his own right and property until she is paid for.” The jury were charged that by a proper construction of the writing, the property in the horse remained in the plaintiff, and on the appeal, NASH, J., says: “In the charge of His Honor there is no error.”

The law would thus seem to have been settled by these concurring authorities, until in Deal v. Palmer, 72 N. C., 582, a different legal effect was given to words very similar, contained in a note for the purchase money of a mule, to-wit: “The mule to stand security for the price until paid for.” In delivering the opinion and after referring to Teague's case, PEARSON, C. J., says: “Here the words of the instrument admit of no question. It was the intention of the parties, and the legal effect of the instrument is to make a...