175 N.C. 657 | N.C. | 1918
The paper introduced in evidence, while called a bill of sale, is in legal effect a mortgage, because it purports to convey personal property as a security for debt (Harris v. Jones, 83 N. C., 321), and being a mortgage, and the mortgagor being a nonresident of the State, it was necessary to cause it to be registered in the county of Macon, where the property was situate, to give it priority over attaching creditors.
The case of Hornthal v. Burwell, 109 N. C., 10, has no application because it does not appear that the truck was not in Macon County when the mortgage was executed.
This principle is therefore decisive of the appeal against the inter-pleader unless error has been committed in excluding the evidence of the witness D’Orr or in holding that the evidence of the witness Wilkinson was not sufficient to be submitted to the jury.
The last part-of-the evidence of D’Orr,-as to the conversation with Ashcraft, was clearly incompetent, as it does not come within any exception to the rule excluding hearsay evidence, and, omitting this, his evidence was immaterial, as it could not change the relation of mortgagor and mortgagee, but would confirm it, as it shows that the Ashcraft-Wil-kinson Company had loaned money to the Sawyer-Eelder Company, and
Tbe evidence is a very good description of a sale of personal property on credit, and taking a mortgage on tbe property as a security, upon becoming doubtful as to tbe solvency of tbe debtor.
And tbe evidence of Wilkinson, if it ought to be considered, after bis admission tbat be knew nothing of tbe transaction and was speaking from hearsay, is subject to the same condemnation. It is true, be says tbe truck was not sold to Sawyer-Felder Company, but this is merely bis conclusion, and be afterwards testified “tbat so far as witness knew personally Ashcraft might have sold this truck to Sawyer-Felder Company.”
He also testified tbat tbe Asbcraft-Wilkinson Company bought tbe truck from tbe White Company and turned it over to the Sawyer-Felder Company, which was to pay for it when able, and tbat tbe mortgage was taken to protect tbe Asbcraft-Wilkinson Company.
This evidence, if true, has no tendency to prove an outstanding title in tbe interpleader derived from tbe White Company if it was permissible to do so, to which we do not give our assent, and on tbe contrary establishes tbe relationship between tbe parties as shown by tbe mortgage.
We are, therefore, of opinion there was no error in tbe exclusion of evidence or in tbe dismissal of tbe interpleas.
Tbe judgment must, however, be modified by declaring tbe Asbcraft-Wilkinson Company to be the owners of tbe property, subject to tbe prior claim and lien of tbe attachments, and to this modification tbe plaintiffs consent.
Tbe interpleader will pay tbe costs of tbe appeal.
Modified and affirmed.