PLAINTIFF'S APPEAL. Plaintiff, holding a chattel mortgage on certain personal property of defendant, a crop, a horse, etc., to secure a debt in the sum of $150, brought this action of claim and delivery for the property, and the same was taken under process in the cause and turned over to plaintiff. At the time of action brought, the note was past due and the right of foreclosure had become absolute. The note is not set out, but the amount seems to be admitted by the parties and is assumed to be $150, for the purpose of this appeal.
Plaintiff filed his complaint alleging ownership of the property and its value; defendant answered, admitting plaintiff's right to possession of the property under and by virtue of the debt and mortgage above referred to; averred that no demand for the property had ever been made on defendant before action was brought, and alleged (3) further, that under and by virtue of process in the cause the property embraced in the mortgage to the value of $700 had been seized and turned over to plaintiff, who had wasted and converted the same, and demanded judgment against plaintiff for the value of the property over and above the amount due on the mortgage debt, and for other relief.
The court submitted an issue as to demand, declining to submit other issues, and the jury having answered the issue to the effect that no demand had been made for the property, the court gave judgment as follows: "This cause coming on to be heard, and it appearing to the court that it is admitted in the answer that plaintiffs are owners and entitled, to the possession of the property described in the complaint by virtue of a certain mortgage recorded in book 4, page 20, in the office of the register of deeds of Craven County, it is considered and adjudged that plaintiffs are the owners and entitled to possession of said property by virtue of said mortgage. And it further appearing that the jury have found that no demand was made before bringing the action, it is considered and adjudged that plaintiffs pay the costs." From the foregoing judgment, the plaintiffs and defendants excepted and appealed. PLAINTIFF'S APPEAL. Plaintiff assigns for error that the judge told the jury "that the demand as claimed and testified to by plaintiff was not an unequivocal demand and was insufficient in law and in substance; that if they believed the evidence they would answer the issue `No.'" It is very generally held that where a mortgagor of a chattel sas [has] been left and continues in possession and control of the property, and has done nothing to question or jeopardize the (4) mortgagee's right, a demand is necessary before an action to recover the property can be maintained at the mortgagor's expense. Jones on Chattel Mortgages, sec. 443; Cobley on Chattel Mortgages, sec. 509.
This is so held because in such case the possession of the mortgagor, while permissive, is rightful, and it would be unjust to subject him to cost and expense without giving him notice and opportunity to surrender the property without litigation. This right to a demand, however, may be waived or forfeited and is not required "where the defendant has committed acts inconsistent with the title and right of possession in the mortgagee and has conducted himself in such a way as to show that a demand would be wholly unavailing. 24 A. E. (2 Ed.), 510. Our own decisions are to like effect. Buffkins v. Eason, 112 N.C. 162; Moore v. Hurtt, 124 N.C. 27.
Applying these principles to the testimony pertinent to the issues, we are of opinion that there was error in the charge of the court, as indicated in the exception. On the trial John Lancaster, a witness for plaintiff, who was acting as agent for the plaintiff at the time of the conversation, testified, among other things, as follows:
Q: "Before you brought suit, what did you say to defendant?" "I told him we had to have some money or the property, and defendant replied, `If you get it you will get it by the law.'"
A demand need not be made in technical form. Any words which, fairly interpreted and understood, would convey notice that present delivery is required, will serve the purpose. And so, any words on the part of defendant which, fairly understood, import a denial of plaintiff's right, or express a definite purpose not to deliver voluntarily, will put the defendant in the wrong and justify an action.
While the language of plaintiff's agent may not express with sufficient distinctness a requirement for the present delivery of the property, the question here is not so much whether a demand was (5) made by plaintiff, but whether the right to require such a demand was waived by defendant; and if, under the circumstances stated, defendants or either of them replied, "If you get the property, you will *Page 38 get it by law," this can only mean that defendants did not intend to surrender the property voluntarily. Such a statement, if made then and there, put the defendant in the wrong and subjected him to an action for the property. No further demand was required.
There is error, and a new trial is awarded.
DEFENDANT'S APPEAL.