This action was brought to recover the value of a horse taken and sold by the defendant, as constable, under sundry executions against one Robert L. Dawson. The horse at the time of the seizure was in the *Page 43 possession of the said Dawson. The plaintiff, in the course of the trial, introduced a paper of the following tenor, viz.:
"Five months after date, I promise to pay Henry Ellison the sum of $50 for a horse, said horse to be said Henry Ellison's horse till paid for. This 14 December, 1839. ROBERT L. DAWSON. (SEAL)"
The counsel for the defendant contended that this instrument must be construed into a mortgage, and that it was void and inoperative for want of registration, and asked the court so to instruct the jury. The presiding judge declined to give such instructions, but informed the jury that the paper seemed to be an undertaking on the part of Dawson to pay the money therein specified at the expiration of five months, upon the consideration of his then having a title to the horse. And the paper in that sense was submitted to the jury to be considered with other evidence in ascertaining whether the horse was in good faith the property of the plaintiff. There was a verdict for the plaintiff under the charge of the court, and a new trial having been moved for and refused, the defendant appealed. The horse in controversy had been the property of the plaintiff, and the instrument of writing which Dawson executed declares that "the said horse is to be Henry Ellison's horse till paid for." These words were inserted to repel any inference that might arise from the antecedent words in the instrument that the title had passed and was executed in Dawson. The said words show the understanding of the parties to be that the contract was executory — but a conditional sale. There could have been no necessity for Ellison to have taken a mortgage on the horse to secure the price unless there had been a prior absolute sale of the horse to Dawson. We think that the instrument is only evidence of a conditional sale, and that it is not a mortgage, and therefore did not require to be registered. Dawson's possession of the horse was only a bailment by Ellison. The judgment must be
PER CURIAM. Affirmed.
Cited: Parris v. Roberts, 34 N.C. 269; Smith v. Sasser, 50 N.C. 390;Clayton v. Hester, 80 N.C. 276; Frick v. Hilliard, 95 N.C. 119; Buttsv. Screws, ib., 217; Tufts v. Griffin, 107 N.C. 50; Whitlock v. LumberCo., 145 N.C. 124. *Page 44