Graves v. Jackson, 150 N.C. 383 (1909)

April 1, 1909 · Supreme Court of North Carolina
150 N.C. 383


(Filed 1 April, 1909.)

1. Instructions Requested — Charge.

When the trial judge substantially gives, by a change of language, proper instructions requested, without weakening their force, there is no error.

2. Mortgagor and Mortgagee — Cancellation—Possession—Mortgage to Third Person.

When the mortgagor of a mule for the purchase price fails to pay the mortgage debt, he and the mortgagee can make a valid agreement to cancel the mortgage upon the condition that the mule be surrendered; and after such has been done and the absolute and unconditional title restored to the mortgagee, who hires the mule to the former mortgagor, a mortgage of the mule then made by the latter to a third person will not be valid, and upon conflicting evidence an issue of fact is raised for the jury.

3.’ Judgment — Parties—Strangers.

The owner of a mule is not bound by a judgment rendered in an action between a third person and one attempting to mortgage the mule to him, when he was' not a party thereto.

*384ActioN tried before Long, J., and a jury, at September Term, 1908, oTMooke.

Plaintiff appealed.

U. L. Spence for plaintiff.

R. L. Burns for defendant.

Walker, J.

This action was brought to recover two mules which the plaintiff alleged the defendant unlawfully withholds from him, or for the value thereof. The mules were taken into possession by the sheriff, under a requisition issued in an ancillary proceeding of claim and delivery, and the defendant gave bond for the return of. the property and the same was delivered to him by the. sheriffs The judgment below was in favor of the defendant, and the plaintiff appealed.

It appears that the controversy in the trial below was confined principally to the “dark horse-mule.” The defendant had agreed with one W. B. Tyson, in 1903, that if Tyson should pay him $125 on or before 1 November, 1903, the mule should then be his property. Tyson failed to pay the money, being unable to do so, and the agreement was canceled by the parties, and afterwards he “hired” the mule to Tyson. The evidence tended to show that the title to the mule was to continue in Jackson until the $125 was paid. In 1904, after the agreement between Jackson and Tyson had been canceled, Tyson mortgaged the mule to the plaintiff, and the plaintiff relied upon the mortgage to establish his title to the mule. It also appeared that in an action between the plaintiff and Tyson to recover this mule and other property the court adjudged that Tyson was indebted to the plaintiff on the mortgage debt in the sum of $238.21, and that the property seized in the action under the requisition in the claim and delivery proceeding was worth $35. The mule was not seized, and the court merely adjudged that the plaintiff recover of Tyson the sajd sum of $238.21 and interest, and further that plaintiff is the owner of the mule and other property described in the complaint as between him and Tyson. The defendant was not'a party to that suit.

The respective parties submitted .prayers for instructions, which, we think, were substantially given by the court. The *385judge is not required to give an instruction in tbe very words used by counsel in tbe request for it, even if tbe instruction be a proper one. If be gives it substantially, and does not, by any change of language, weaken its force, it .is a sufficient compliance witb tbe law. Rencher v. Wynne, 86 N. C., 268. Tbe court, by its instructions, left tbe facts to be found by tbe jury, and correctly explained to tbem tbe law arising upon tbe evidence. ¥e do not see wby Jackson and Tyson could not cancel tbeir agreement if Tyson found tbat be was unable to pay tbe price of tbe mule, and thereby restore tbe absolute or unconditional title to Jackson. All tbe evidence tended to show tbat at the time Tyson executed tbe mortgages to tbe plaintiff tbe title to tbe mule was in .Jackson. Tbe jury evidently found this to be tbe fact.

As to tbe suit between tbe plaintiff and Tyson, tbe defendant was not bound or concluded by any adjudication therein, not having been made a party to tbe action.

There was no error in tbe instructions as to tbe amount due on tbe plaintiff’s mortgages. This was an issue of fact, which was properly left to tbe jury. Indeed, tbe plaintiff, by bis fifth prayer, appears to have so regarded it.

We find no reversible error in any of the’rulings of tbe court to which tbe plaintiff excepted. Tbe case was fáirly submitted to tbe jury by tbe court. It practically involved an issue of fact, which tbe jury, upon tbe evidence, found against tbe plaintiff.

No Error.