Taylor v. Hodges
| Decision Date | 03 March 1890 |
| Citation | 11 S.E. 156,105 N.C. 344 |
| Parties | TAYLOR v. HODGES. |
| Court | North Carolina Supreme Court |
This was an action of claim and delivery, tried before ARMFIELD J., and a jury at the November term, 1889, of Harnett superior court.
The plaintiff claimed the property mentioned in his complaint by virtue of a note &Pg157and chattel mortgage bearing date April 30, 1887. The note was given for "595 pounds of good white cotton, payable on the first day of October" of the same year, and mortgage was of the same date, payable at the same time; and the description of the property as contained in the mortgage is as follows: "I, Burrell Hodges, of the county of Harnett and state of North Carolina am indebted to James A. Taylor, of said county and state, in the sum of five hundred and ninety-five pounds good white cotton, for which he holds my note, due the first day of October, 1887, and, to secure the payment of the same, I do hereby convey to him these articles of personal property to-wit: All of my entire crop to be made on my lands in Averasboro township, Harnett county, N. C.; one black ox; six head of cows; and twenty head of cows, -all the above property being entirely free from any incumbrance whatever," etc. The defendant objected to the introduction of the note and mortgage -First, that there was a material variance between the allegations of the complaint and the evidence offered; and, second, that the description of the property attempted to be conveyed by the mortgage was so indefinite, vague, and uncertain that no title to the property sought to be recovered passed to the plaintiff by virtue of the mortgage; and, third, that the mortgage attempted to convey an unplanted crop. The objections were overruled, and the evidence admitted by the court; and the defendant excepted. On examination, the plaintiff was asked to state what sort of cotton, whether lint or seed cotton was intended by the note, and, further, the crop of what year was intended to be conveyed by the mortgage, to which the defendant excepted upon the ground that the written instrument could not be varied or explained by parole testimony in that way; but the court overruled the objection and allowed the plaintiff to give the explanations asked for, to which the defendant excepted. The defendant was introduced as a witness in his own behalf, and upon cross examination was asked by the plaintiff the crop of what year was intended to be conveyed by the mortgage, to which the defendant objected; but the court overruled the objection, and required the defendant to answer the question. There was no evidence that the plaintiff ever demanded the possession of the property sought to be recovered in this action, but the plaintiff testified that the defendant said that he never intended to pay the note in question, but that he (plaintiff) must get it according to law; and the defendant set up a counter-claim in the action against the plaintiff for $3,000, alleging that the plaintiff promised that, if defendant would sign the noise and mortgage upon which this action was based, that plaintiff would furnish the defendant during that year with all the farm supplies that defendant should need; and this was denied by the plaintiff. The defendant asked the judge to charge the jury as follows: "(1) That, as there was no evidence that the plaintiff ever demanded the possession of the property of the defendant sought to be recovered in this action before bringing this action against the defendant, that the plaintiff was not entitled to recover: and (2) that the description of the property as contained in the mortgage was so uncertain, indefinite, and vague that no title to the property passed to the plaintiff by virtue of said mortgage." All this was declined by the judge, but he charged the jury that, as the plaintiff had testified that the defendant had said that he would not pay the debt, that therefore a demand for the possession of the property was not necessary before bringing the suit, and that the description of the property was not necessary before bringing the suit, and that the description of the property as contained in the mortgage was sufficient to pass the title of the property to the plaintiff. The following are the only issues that were submitted to the jury by his honor:
| 5 Stacks fodder ........ | $17 50 |
| 200 bushes corn .......... | 120 00 |
| 6 head of Cows .......... | 35 00 |
| 1,700 Pounds seed cotton .... | 51 00 |
| ------- | |
| $223 50 |
Judgment ...
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