In the light of the stipulation of the parties as to issues involved in this case, this is the pivotal question on this appeal: Plaintiff, having offered in evidence the recorded chattel mortgage on the automobile in question, and defendant Lanier having set up affirmative defense of a sale of the automobile to him prior to registration of the chattel mortgage, is the evidence offered upon the trial in Superior Court, taken in the light most favorable to plaintiff, of sufficient probative force to take the case to the jury on the issue as to right of possession of the automobile?
Under such circumstances, defendant Lanier had the burden of going forward with the evidence and of proving the affirmative defense set up by him. And the evidence offered, as pointed out in brief of plaintiff appellant as hereinabove recited, is sufficient to support a negative finding by the jury as to such affirmative defense. Hence in granting nonsuit there is error.
So holding, further discussion now of the evidence and the law arising thereon, in this respect, seems unnecessary.
Moreover, if the jury should find from the evidence, and by its greater weight, that defendant Lanier had not purchased the automobile in *287question from Thomas, as he alleges, the issue of estoppel by conduct would not arise.
Hence elaboration on the law relating to subject of estoppel in pais is not now deemed to be expedient. For statement of principle see Hawkins v. Finance Corp., 238 N.C. 174, 77 S.E. 2d 669, and cases cited.
Lastly, the case on appeal reveals an alleged illegal agreement, which is not the basis of the present action. This action was instituted 7 May, 1955, and the agreement bears date 30 January, 1956. Thus it is patent that plaintiff is not here seeking to enforce it. Plaintiff is doing nothing which must be regarded as a necessary affirmance of an illegal act. See Herring v. Lumber Co., 159 N.C. 382, 74 S.E. 1011.
Indeed, in 12 Am. Jur. 719, Contracts 211, the author declares that “An illegal agreement made by a plaintiff will not defeat him unless his cause of action is founded upon, or arises out of, such agreement. His right to recover upon a ground .of action that exists independently of the agreement is not affected thereby.” Such is the case in hand. Therefore this Court holds that the agreement does not impair plaintiff’s right to maintain this action.
For error in granting nonsuit, the judgment pursuant thereto is
Reversed.