Williams v. Jones

• Decision Date: 31 October 1886
• Citation: 95 N.C. 504
• Court: North Carolina Supreme Court
• Parties: HARPER WILLIAMS v. ANARCHY JONES.

95 N.C. 504

HARPER WILLIAMS

v.ANARCHY JONES.

Supreme Court of North Carolina.

October Term, 1886.

This was a CIVIL ACTION, tried at February Term, 1886, of the Superior Court of DUPLIN county, before Gilmer, Judge.

A jury trial was waived, and the Court found the following facts: “On March 30th, 1878, one Squire Jones, executed to the plaintiff a chattel mortgage, conveying a certain horse, the property in dispute. On the ____ day of ____, 188_, Squire Jones died intestate, and the defendant is his widow. That after the death of Squire Jones, to-wit: on the 27th day of September, 1883, said property was duly assigned to the defendant as the widow of Jones, as a part of her year's allowance. That the mortgage executed by Squire Jones to the plaintiff, was not registered until December 11th, 1883, and is still unsatisfied. That the plaintiff took possession of said property on the ____ day of December, 1883, and has disposed of the same. That said property was worth sixty dollars at the time it was taken into possession by the plaintiff.”

Upon these facts his Honor gave judgment in favor of the defendant, to which plaintiff excepted and appealed.

Mr. A. W. Haywood, for the plaintiff .

Mr. W. R. Allen, for the defendant .

ASHE, J., (after stating the facts).

By §1254 of The Code, it is declared that “no deed of trust or mortgage for real or personal estate, shall be valid at law to pass any property as against creditors and purchasers for a valuable consideration from the donor, bargainor or mortgagor, but from the registration of such deed of trust or mortgage,” &c.

Prior to the passage of this act, a mortgage was valid even against creditors and purchasers, and it was required to be registered for their benefit. But as between the parties, their rights were undisturbed by the act, and they are left as they existed before its passage.

There is no principle better settled, than that as between the parties, a mortgage is valid without registration; Leggett v. Bullock, Busb., 283; and it is so laid down in Jones on Mortgages. “Of course,” says that author, “the recording of a mortgage is not necessary as against the mortgagor, and even in those States where it is provided by statute that a mortgage shall be recorded within a specified time, it is still valid between the parties until registered,” §107, and it is maintained by the same author, in §545, that a mortgage may be recorded after the death of the mortgagor, if he has in his lifetime made delivery of it. His general creditors cannot, for that reason, claim that the mortgage was inoperative as against them. Such a mortgage is good and binding upon the heir in like manner as upon the mortgagor, and the same principle applies to chattel mortgages. Neither the heir in the one case, nor the administrator in the other, is a third person, but represents the intestate, and has no better title than he had. Jones on Chattel Mortgages, § 239. The same principle applies to assignees in bankruptcy. Though they are held...