The following issues were submitted and responded to by the (18) jury:
1. Is plaintiff the owner and entitled to the possession of the horse described in the complaint? Answer: Yes.
2. What is the value of the horse? Answer: $150.
There was judgment on the verdict for plaintiff and defendant excepted and appealed. The plaintiff offered in evidence a chattel mortgage on the horse in question, to secure a note of $100.30, duly registered in Anson, the proper county, on 2 September, 1907. The defendant offered in evidence the following paper-writing, the execution of which was properly proven, and as of the date appearing on the face, 31 August, 1907, and proved the delivery of the property described in the paperwriting to the sheriff of Anson County on the day of its execution: *Page 14
ALBEMARLE, N.C. 31 August, 1907.
I, E. B. Dunlap, do hereby freely of my own will and volition, turn over, surrender and deliver to J. D. Love, Sheriff of Stanly County, to be held by him for the Bank of Wadesboro, Wadesboro, N.C. and to be delivered by him to said bank, one bay mare, one Henderson Ruff rubber tire top buggy, the harness and bridle, collar with same, all now in the livery stable of S.D. Klutz at Albemarle, N.C. also one new suit of clothes, now at my father's home in Anson County. This property is delivered to said bank to partly cover some checks on said bank which I have drawn on E. C. Dunlap's account.
This 31st August, 1907. E. B. DUNLAP. Witness: R.L. Smith.
(19) This paper has not been registered. Defendant further offered evidence tending to show the existence of a valid demand existent in favor of defendant bank against the said E. B. Dunlap, and that the property in question was turned over in satisfaction of this claim. The court, after hearing the testimony, on motion excluded the same, holding: that the testimony admitted, tending to show that there had been a sale of the property to defendant, was admissible; that the paper-writing, under which defendant claimed the property, was on its face a chattel mortgage or an assignment requiring registration, and not having been registered, same was invalid as against the plaintiff's claim; and charged the jury, if they believed the testimony, to answer the first issue Yes. Defendant excepted.
The Court is of opinion that there was error in the ruling of the court below. The paper-writing, on its face, purports to be a sale effecting an absolute transfer of the property, and, so far as the evidence now discloses, no registration of same is or was required. This sale having taken place prior to the registration of plaintiff's mortgage, the title of defendant to the horse is good, unless and until the same is in some way impeached. And the testimony offered by defendant, which was first admitted by the court and afterwards struck out for the reasons indicated, would be relevant in support of defendant's title in case impeaching testimony is offered.
New trial. *Page 15
(20)