Holman v. . Whitaker

25 S.E. 793 | N.C. | 1896

The following were the issues submitted and the responses thereto:

"1. Is the plaintiff the owner and entitled to the possession of the carriage and wagon described in the complaint? Answer: `Yes.'

"2. How much is the defendant indebted to the plaintiff? Answer: `$91.50 and interest.'"

There was judgment for the plaintiff, and defendant appealed. This is an action to recover possession of personal property claimed under a mortgage. The description was a "one-horse wagon," the defendant having at the time of making the mortgage four one-horse wagons. This case is governed by Blakely v. Patrick, 67 N.C. 40. There the language was "ten new buggies," the mortgagor having more than ten new buggies in the same lot, and the plaintiff could not recover. Here a "one-horse wagon" was the description, the mortgagor having four one-horse wagons, and the plaintiff can not recover. Suppose one wagon, in the meantime, had been stolen; whose wagon was lost? The doctrine was so well discussed in Waldo v. Belcher, (115)33 N.C. 609, that we need not repeat it. The ambiguity is patent, and parol testimony to explain it is inadmissible. If one of the wagons had been set apart and in some way distinguished at the time of making the mortgage, or if the mortgagor had owned only one wagon, then such evidence could be heard for the purpose of identification. Spivey v.Grant, 96 N.C. 214; Lupton v. Lupton, 117 N.C. 30. We notice that there is no judgment for possession of the wagon in the record, unless the words in the judgment, "that the sale was in all respects regular," can be so construed. We, however, give the plaintiff the benefit of a judgment for possession, according to the finding on the first issue. There is no controversy about the phaeton. There is

ERROR.