Griffith v. Richmond

• Decision Date: 17 April 1900
• Citation: 126 N.C. 377,35 S.E. 620
• Court: North Carolina Supreme Court
• Parties: GRIFFITH v. RICHMOND.

35 S.E. 620

126 N.C. 377

GRIFFITH

v.RICHMOND.

Supreme Court of North Carolina.

April 17, 1900.

REPLEVIN — EVIDENCE — RECORDED INSTRUMENTS—ESTOPPEL—ADMISSIONS—ISSUES—INSTRUCTIONS — JUDGMENT — EXCEPTIONS — WHEN NECESSARY.

1. Under Code, § 1251, providing that the duly-certified copy of the record of any instrument required or allowed to be recorded shall be full and sufficient evidence of such instrument, a chattel mortgage, having been probated and registered, was prima facie evidence of its execution.

2. A chattel mortgagor was estopped by the mortgage to deny his responsibility, when called on, for either the property or its value, to the extent of the debt.

3. An omission to charge on any point is not a ground of exception, unless an instruction on that point is asked and refused.

4. A bond given by defendant in an action to recover the possession of personal property was an admission that he had been in possession since the action began.

5. Where, in a proceeding by a chattel mortgagee to recover possession of the property conveyed, the mortgage showed an indebtedness of more than $50, which sum, the complaint and admissions showed, the value of the property would not exceed, though there was no evidence as to its value, a judgment for the possession of the property, and, if it be not delivered, for the penalty of defendant's bond, to be discharged on payment of $50 and costs, was erroneous.

6. In an action by a chattel mortgagee to recover possession of the property conveyed, it was error to refuse to submit an issue as to the amount of the debt.

7. Under Code, §§ 326, 431, providing that in a proceeding for the recovery of personal property, defendant may retain possession, by giv-ing a bond for the return of the property or the value thereof, such value should be ascertained at the trial.

8. An error appearing on the face of the record may be taken advantage of without exception.

Appeal from superior court, Forsyth county; Robinson, Judge.

Action by J. F. Griffith against M. H. Richmond. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jones & Patterson, for appellant.

L. M. Swink, for appellee.

CLARK, J. This is an action begun before a justice of the peace to obtain possession of personal property, alleged to be $50 in value, embraced in a chattel mortgage. The record does not show that the affidavit required by Code, §§ 322, 890, was made, which is indispensable (Hirsh v. Whitehead, 65 N. C. 516); but it was probably made, as no point was raised, for its omission, either in the superior or in this court. In the superior court, upon appeal, the plaintiff did not prove execution of either note or mortgage, but offered in evidence the chattel mortgage, with certificate of probate and registration, and the note described therein, and rested. The defendant's demurrer to this evidence was overruled. Exception. Defendant also excepted because the court instructed the jury that, the chattel mortgage having been probated and registered, this was prima facie evidence of its execution. The instruction was correct (Love's Ex'rs v. Harbin, 87 N. C. 249; Code, §§ 1251, 1271), subject to rebuttal (Helms v. Austin, 116 N. C. 751, 21 S. E. 556), and defendant offered no evidence. The mortgage, duly registered, in absence of proof in rebuttal or of payment, entitled the plaintiff to judgment for the possession of the property described in the mortgage, if any sum, however small, was still due upon it, and the burden to prove payment was upon the defendant. Jordan v. Farthing, 117 N. C. 181, 23 S. E. 244.

The defendant further excepted because the Judge "failed to charge" the jury that there was no evidence that the defendant was then, or ever had been, in possession of the property. The mortgage itself...