Smith v. Bynum

• Decision Date: 28 February 1885
• Citation: 92 N.C. 108
• Court: North Carolina Supreme Court
• Parties: J. H. SMITH v. S. BYNUM.

92 N.C. 108

J. H. SMITH

v.S. BYNUM.

Supreme Court of North Carolina.

February Term, 1885.

This was an action of claim and delivery of a mule, tried before MacRae, J., and a jury, at July Special Term, 1884, of GREENE Superior Court.

The plaintiff offered in evidence a mortgage executed by Ketter Vines and Frank Vines to King & Smith, recorded in March, 1881; a mortgage from same parties to J. H. Smith, plaintiff, executed and registered in January, 1882, and a mortgage from same parties to J. H. Smith dated January 8th, 1883, and registered February 22nd, 1883. J. H. Smith, plaintiff, testified that defendant had the mule described in the three deeds in his possession at the commencement of this action; that plaintiff is successor and assignee of King & Smith; that the mortgages have never been settled.

Cross-examined, plaintiff further testified that he had a settlement with the mortgagors at the end of the year 1881, and the amount found to be due plaintiff was $243.10; plaintiff then took a new mortgage to himself for the amount due upon the former mortgage, and undertook to make further advances to the mortgagors to the amount of $50, and at the end of 1882 had another settlement, when it was ascertained that the mortgagors were still indebted to him in the sum of $243.53, and thereupon plaintiff took another mortgage for this amount and to secure further advances. At the time the last mortgage was executed, plaintiff does not know whether the mule described therein was in the possession of the mortgagors or not. In February or March, 1883, the mule was in possession of one Dunn. Dunn said he got it from Frank Vines. Plaintiff found mule in possession of defendant and brought this action.

Testimony was also introduced as to the value of the mule.

William Dunn, for the defendant, testified that he got the mule from Frank Vines in December, 1882, without notice of any mortgage, and traded it to defendant.

The presiding judge charged the jury that the first and second mortgages were satisfied by the annual settlements and giving of new mortgages, and that if they found that the mule described in the last mortgage, which was admitted to be the same as that described in the first and second, had been disposed of by the mortgagors before the last mortgage was made and executed, and was not in their possession at the time the last mortgage was made, the plaintiff was not entitled to recover. Plaintiff excepted.

Verdict for defendant...