Ragland v. Marshall

• Decision Date: 18 March 1925
• Docket Number: (No. 257.)
• Court: North Carolina Supreme Court
• Parties: CHANDLER & RAGLAND v. MARSHALL.

126 S.E. 742

(189 N. C. 301)

CHANDLER & RAGLAND

v.MARSHALL.

(No. 257.)

Supreme Court of North Carolina.

March 18, 1925.

Appeal from Superior Court, Franklin County; Horton, Judge.

Action in claim and delivery by Chandler & Ragland against John Marshall. Judgment for plaintiffs, and defendant appeals. New trial.

Civil action in claim and delivery, tried upon the following issues:

"(1) Are the plaintiffs, Chandler & Ragland, the owners and entitled to the possession of the two mules in controversy? Answer: Yes.

"(2) What was the value of said mules at the time of the seizure in claim and delivery? Answer: $75.00."

Judgment on the verdict for plaintiffs, from which the defendant appeals, assigning errors.

W. M. Person, of Louisburg, for appellant

Wm. H. & Thos. W. Ruflin, of Louisburg, for appellees.

STACY, C. J. This is an action in claim and delivery, instituted by plaintiffs to recover, as mortgagees or by virtue of an unregistered retained title contract, the possession of a pair of mules, sold by plaintiffs to one George Burnett, now deceased. On the trial defendant contended that he had purchased the mules from George Burnett, for value and without notice of the plaintiffs' lien, and gave evidence to this effect.

Over objection the plaintiffs were allowed to offer the testimony of two witnesses, tending to show what George Burnett had said to them on different occasions, and subsequent to the transaction, in regard to the alleged sale of the mules to the defendant. D. P. McKinne, a witness for the plaintiffs, testified to a conversation with the deceased in which he was informed that the mules had only been rented or hired to the defendant, and that no sale of them had been made. A like conversation was detailed by the widow of the deceased. This evidence was incompetent as hearsay and should have been excluded. Barker v. Ins. Co., 163 N. C. 175, 79 S. E. 424; McCurry v. Purgason, 170 N. C. 466, 87 S. E. 244, Ann. Cas. 1918A, 907.

Speaking to a similar question in the case of Matthis v. Johnson, 180 N. C. 133, 104 S. E. 368, Walker, J., said:

"The testimony of K. A. Robinson was properly excluded, because he proposed to speak solely of a statement, not only of a third person, but of a person who had since died, which was made to him. This was hearsay and incompetent, it having none of those safeguards required by the law for the maintenance of truth."

And in Printing Co. v. Herbert, 137 N. C. 317, 49 S. E. 349, the holding of the court is quite...