Barrington v. Skinner

117 N.C. 47 | N.C. | 1895

Clark, J.:

The terms of the sale of the piano by Moses & Co., to the defendant provided for the execution of notes for the installments of rent and. that when all the rent notes were paid, title should pass to the said Skinner, title being retained by Moses & Co. till such final payment. Such instrument was in truth and in legal effect a conditional sale, and has been so held in Puffer v. Lucas, 112 N. C., 377, which has been cited and approved in Crinkley v. Egerton, 113 N. C., 444, and Clark v. Hill, at this term. The registration was properly made in the County of Jones where the purchaser resided and the property was situated. The Oode, Sections 1254, 1275. On the removal of the purchaser with the property to Craven County it was not required that the instrument should again be recorded in that County.

The renewal of the notes indicated no intention to relinquish the security afforded by the registration of the agreement that the vendors should retain title.' On the contrary it is expressly stated that the new notes were given “in renewal and in lien of the former' notes” and that when the old notes were surrendered they were marked “surrendered for renewal note” across the face. There was no novation and the new notes retained the same security as the old ones. Hyman v. Devereux, 63 N. C., 624. This differs from Smith v. Bynum, 92 N. C., 108, where there was a novation and a distinct relinquishment of the security by taking a new mortgage and note in settlement. The plaintiff upon his bond for the return of the property to the defendant, if so adjudged, or its value (The Oode, 324) was properly adjudged to deliver the same to the inter-pleaders Moses & Co., The Oode, S. S. 189, 424 (1), but in the absence of any finding or agreement that the value of the piano was §150, it-was error-to render judgment for that sum against the plaintiffs and 'sureties if said piano were not delivered to said interpleaders. The plaintiffs are entitled to have the value of the piano ascertained and should be adjudged to pay only the value of the same— (not exceeding however, in any event the balance due on the purchase money) if the piano is not delivered. The judgment thus modified is affirmed.

Modified and Affirmed.