Johnson v. Bray, 174 N.C. 176 (1917)

Oct. 3, 1917 · Supreme Court of North Carolina
174 N.C. 176
E. R. JOHNSON v. W. H. BRAY

E. R. JOHNSON v. W. H. BRAY.

(Filed 3 October, 1917.)

Mortgages, Chattel — Assignee of Mortgage — Claim and Delivery — Right of Possession.

The assignee of a chattel mortgage may maintain proceedings in claim and delivery for the possession of the mortgaged property or for its value, etc., in his own name and right,- after the note secured by the mortgage is overdue and remains unpaid.

Civil actioN, in the nature of claim and delivery, to recover possession of certain personal property described in a mortgage from defendant to one Hampton, and assigned to plaintiff, tried-at May (Special) Term, 1917, Bond, J., in Cueeituce: Superior Court.

*177At tbe time of commencing tbe action tbe debt was past due. These issues were submitted:

1. What balance, if anything, is due by defendant Bray to plaintiff Johnson on note referred to in complaint? Answer: $153.10, with interest from 2 November, 1915.

2. Is the property seized in this action liable as security for said sum due plaintiff by defendant? Answer: Yes.

It being admitted that the property seized under claim and delivery and replevied by defendant cannot be restored, and that the value of same at the time of seizure and replevy was the $155, the court rendered judgment against defendant and B. N. Bray, surety on bond, for its value.

Defendants appealed.

A. ill. Simmons and Ehringhaus & Small for plaintiff.

Ward & Thompson for defendant.

Brown, J.

The principal contention of defendant is that plaintiff cannot recover in an action for the possession of the mortgaged property because he is not the mortgagee, but only an assignee of the debt secured by the mortgage. The contention cannot be maintained.

It is expressly decided in Satterthwaite v. Ellis, 129 N. C., 67, that the assignee of a chattel mortgage is entitled to the possession of the property before the mortgage becomes due. If so, the assignee is certainly entitled to such possession after the debt falls due. 11 Corp. Juris, 671, sec. 432; 5 R. C. L., 473; 64 L. R. A., 618, and notes.

The other assignments of error are without merit and need not be discussed.

No error.