Hailey v. Gray

• Decision Date: 31 October 1885
• Citation: 93 N.C. 195
• Court: North Carolina Supreme Court
• Parties: W. W. HAILEY v. GRAY & GRAY.

93 N.C. 195

W. W. HAILEY

v.GRAY & GRAY.

Supreme Court of North Carolina.

October Term, 1885.

This is a CIVIL ACTION in the nature of Claim and Delivery, tried at Chambers, Fall Term, 1885, of MONTGOMERY Superior Court, before Montgomery, Judge.

On the 17th day of February, 1881, R. C. Gray and M. F. Gray executed to the plaintiff an agricultural lien and mortgage in which they conveyed the following personal property, to-wit: One bay horse, named John, and one dark colored mare, named Lucy, with the understanding that if said R. C. Gray and M. F. Gray shall well and truly pay said Wm. W. Hailey for the advances aforesaid on or before the 1st day of November next, the said lien and mortgage shall be discharged, and the said property revert to R. C. Gray and M. F. Gray, otherwise said Wm. W. Hailey shall have power to take into possession all of said crop and property, and to sell the same for cash, or so much thereof as may be necessary to pay for the advances aforesaid and all other expenses.”

After the execution of the aforesaid agreement, the defendants exchanged the ““dark colored mare, named Lucy,” mentioned in the mortgage, for a mule, for which this action was brought, and at Fall Term, 1882, the following issue was submitted to a jury, to-wit: “Did the defendants exchange the bay mare mentioned in the alleged mortgage for the mule described in the complaint, and was the exchange made by the defendants with the consent and agreement of plaintiff, with the understanding that said mule shall be substituted in lieu of the said bay mare in the mortgage?” To which issue the jury responded in the affirmative, and that said mule was the property of the plaintiff subject to the question as whether said lien and mortgage had been discharged.

At the same term it was ordered by the Court, the defendant objecting thereto, that it be referred to the clerk to take an account of the advancements made by the plaintiff to the defendants under the lien and mortgage, and the payments thereon by the defendants.

Upon the coming in of the report of referee, the defendants filed numerous exceptions, a jury trial was waived, and by consent, all questions of fact raised by the exceptions, were left to the decision of his Honor, who sustained defendants' second exception, to-wit: “That the defendants are charged with $41.24, obtained before the execution of said lien,” and overruling their other exceptions. The judgment of the Court was, “that the $41.24 account was made before the lien and mortgage were executed, and the same is not in law an advancement under the statute and is not secured by the lien, also the same should not be charged against the defendants under the mortgage, for the reason that the mortgage only secures advances covered...