35 S.E. 620 | N.C. | 1900
Judgment was rendered in favor of plaintiff for the possession of the property described.
Defendant excepted, and appealed.
The case appears in the opinion.
This is an action begun before a justice of the peace (378) to obtain possession of personal property alleged to be $50 in value, embraced in a chattel mortgage. The record does not show that the affidavit required by The Code, sections 890 and 322, was made, which is indispensable. (Hirsh v. Whitehead,
The mortgage, duly registered, in absence of proof in rebuttal or of payment, entitled the plaintiff to judgment for the possession of the property described in the mortgage, if any sum, however small, was still due upon it, and the burden to prove payment was upon the defendant. Jordanv. Farthing,
The defendant further excepted because the judge "failed to charge" the jury that there was no evidence that the defendant was then or ever had been in possession of the property. The mortgage itself estopped the defendant to deny that he was responsible for the forthcoming of the property, when called for to be applied to the debt, and in failing to do so he would be responsible for the value of the property not to exceed the amount of the debt. Besides, an omission to charge (379) is not ground of exception unless an instruction on that point is asked and refused. Clark's Code (3 Ed.), section 412 (3), and numerous cases cited on page 514. Indeed, the bond given in this action by the defendant to retain possession of the property is an admission of such possession since action begun.
The note was not proven and was improperly admitted in evidence, but the mortgage admitted an indebtedness, greater than the $50, which sum the complaint and the admission of the parties stated the value of the property would not exceed. The judgment as rendered is not for the debt, but merely for the possession of the property, and if it be not delivered, for recovery of the penalty of the defendant's undertaking "to be discharged upon payment of $50, and the costs of the action." This judgment is erroneous in that the value of the property was not ascertained beyond the admission that it "does not exceed $50." It was also *233
error to refuse to submit an issue as to the amount of the indebtedness. It is true that upon the issue actually submitted, "Is the plaintiff the owner and entitled to possession of the property?" evidence could have been offered whether anything was due or not, and if anything, the plaintiff was entitled to recover possession. But the recovery of the property is here sought to be applied upon a debt, and the defendant, as he desired, had a right to have the amount thereof ascertained in this action to prevent circuity of action, that he or his sureties might, if they chose, pay off the debt and relieve the property. When the case goes back the value of the property at the time of seizure should also be ascertained, as the sureties are only liable on their undertaking for such value, not exceeding, however, the indebtedness secured. Code, sections 326 and 431; Hall v.Tillman,
No exception was taken for refusal to submit an issue as to (380) the value of the property, but when the value of the property was neither admitted nor found by issue, judgment for the amount of the undertaking "to be discharged upon payment of $50," is error upon the face of the record to be taken advantage of without exception. Thorntonv. Brady,
Error.
Cited: Smith v. French,
(381)
