The plaintiffs sought to recover possession of a "Steam Feed" machine, which they had shipped to B. F. Moss, under whom the defendant claimed, upon conditions stated in a letter which they wrote to Moss at the time of shipment, the material part of which letter was as follows: "In sending out our Feeds in this way, we have the parties give us their notes, payable according to the terms of the lease as rental on the same, and when the notes are paid we give them title to the machinery and a contract to refund or give back the notes if the machinery does not prove satisfactory, perfectly, and do all we claim for it in our circular. We will ship the Feed on these terms at once, and we know that you will be pleased with it," etc. On the trial it appeared that the "Steam Feed" was attached to the sills of a sawmill by iron bolts, the sills resting (12) on piling driven in the ground. The land on which the sawmill was built belonged to B. F. Moss, subject to a mortgage which *Page 9 was subsequently foreclosed. The defendant claimed under the purchaser at the foreclosure sale and was in possession of the land and the "Steam Feed" (attached to the mill as stated) when suit was brought for the recovery of the machine.
Under instructions from his Honor that, upon all the evidence, the plaintiffs were entitled to recover, the jury so found, and from the judgment on the verdict of the defendant appealed, assigning as error that his Honor erred in giving the said instruction instead of the instruction prayed for by defendant that, upon all the evidence, the plaintiffs were not entitled to recover. The plaintiffs earnestly contend that the terms of the contract were those set forth in the reply to Moss when the "Steam Feed" was shipped,i. e., a lease upon payments of rent, as stated, and on the last payment of rent the property to belong to Moss, in the meantime the title to be retained by the vendor. Conceding this to be correct, such contract was in effect a conditional sale. Calling it a "lease" did not make it one, when its terms showed it was not. This was held inPuffer v. Lucas, 112 N.C. 377, which has been since cited and approved in Crinkley v. Egerton, 113 N.C. 444; Barrington v. Skinner, post, 52. This agreement not being registered, the stipulation for retention of the title by the vendors was invalid as to third parties. The Code, sec. 1275. The property in dispute, by the mode of its attachment, became a "fixture" as between Moss and this defendant's assignor, they being mortgagor and mortgagee (Horne v. Smith, 105 N.C. 322;Overman v. Sasser, 107 N.C. 432), and inured to the benefit of (13) the mortgagee. Foote v. Gooch, 96 N.C. 265.
The court should have instructed the jury as prayed by the defendant that, upon all the evidence, the plaintiffs were not entitled to recover, and to answer the issues in the negative.
Error.
Cited: Barrington v. Skinner, post, 52; Mfg. Co. v. Gray, 121 N.C. 170;Blalock v. Strain, 122 N.C. 287; Wilcox v. Cherry, 123 N.C. 84;Yarborough v. Hughes, 139 N.C. 203; Hamilton v. Highlands, 144 N.C. 283;Hicks v. King, 150 N.C. 371; Fulp v. Power Co., 157 N.C. 161;Hinton v. Williams, 170 N.C. 117; Observer v. Little, 175 N.C. 43;Starr v. Wharton, 177 N.C. 324. *Page 10