Harris v. Allen

• Decision Date: 21 October 1889
• Citation: 10 S.E. 127,104 N.C. 86
• Parties: HARRIS v. ALLEN et al.
• Court: North Carolina Supreme Court

10 S.E. 127

104 N.C. 86

HARRIS v. ALLEN et al.

Supreme Court of North Carolina

October 21, 1889

This was a civil action for the recovery of a mule and wagon tried before AVERY, J., and a jury, at the April Term, 1888 of the superior court of Franklin county. The plaintiff claimed under a mortgage executed to him by Robert Strickland and wife, registered in the county of Wake on the 28th day of March, 1884. At the time of the execution and registration the mortgagors lived in the county of Wake. The mortgage conveyed certain real estate in Wake county, and "all the personal property of every kind of which they are possessed." About two years after the execution of the mortgage, the mortgagors moved to Franklin county, taking with them the property in controversy. The mortgage was never registered in Franklin county, and the mortgage debt has never been paid. The jury found that the land was worth only $700, and that the homestead had never been laid off. The defendant claimed the wagon and harness under a subsequent mortgage executed after the removal to Franklin, and duly registered. This property was sold, leaving a balance due which defendant reduced to judgment. Under this judgment the mule was sold. The property was replevied by the defendant and sold. Defendant bought the mule at the sheriff's sale. It does not appear who bought the wagon. A. J. P Harris testified: "I am plaintiff, Robert Strickland lived near R. C. Mitchell's mill, in Wake county, when the mortgage was made, and moved in Franklin, and lived part of the year 1886. (Proposed to show by the witness that the mule and wagon in controversy constituted a part of Strickland's personal property when the mortgage was made. Defendant objected. Objection overruled. Exception by defendant.)" The following issues were submitted, viz.: "(1) Is the plaintiff the owner of the wagon and mule in controversy? Yes. (2) What was the value of the mule and wagon in controversy at the time of the seizure? Mule, $125; wagon, $40. (3) What is the value of the land conveyed by Robert Strickland, by virtue of the mortgage mentioned in the pleadings, to the plaintiff? Answer, $700."

The defendant asked the court to instruct the jury as follows: "That the plaintiff cannot recover against this defendant, for that (1) the registration of the mortgage to A. J. P. Harris from Robert Strickland, being only in Wake county, was not sufficient as against execution creditors, of whom this defendant was one. (2) That the description of the personal property attempted to be conveyed is not sufficient as against execution creditors. (3) The plaintiff would be compelled to resort to the singly charged estate conveyed in the mortgage before suing this defendant. (4) That a demand of the property, for the value of which this suit is brought, would be necessary before suit would lie against this defendant, the possession of the defendant being rightful."

The court instructed the jury as follows: "The mortgage deed executed by Strickland to plaintiff conveys all of Strickland's personal property; and if the mule and wagon in controversy constituted at the time the mortgage was made a part of such personal property, and the debt secured by said mortgage had not been satisfied when the seizure was made under defendant Allen's execution for the debt due him, then the legal title to the property in controversy was in plaintiff when the action was brought, and the jury should respond to the first issue, 'Yes,' It is admitted that the debt has not been paid; and that the wagon and mule in controversy were a part of Strickland's personal property when he executed the mortgage deed." The court gave the foregoing instruction in lieu of the first and second paragraphs of the said prayer for instructions. The court reserved the question involved in the instruction asked, and numbered 3, until after verdict as to value of the land. There was no issue asked as to demand, and the defendants in their answer set up title to the property in controversy. The court refused to give the instruction asked for in the fourth paragraph of said prayer for instruction. The defendants excepted...