Wilson v. Purcell, 33 N.C. 502, 11 Ired. 502 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 502, 11 Ired. 502

REBECCA WILSON vs. QUINTON PURCELL & AL.

Property passes by a,sale and delivery, notwithstanding an executory agreement to sell to another, and the receipt of a part of the price.

Appeal from the Superior Court of Law of Rockingham County, at the Fall Term 1850, his Honor Judge Manly presiding.

This was an action of trover for a mare, in which it appeared, that the defendants had, on the 10th of November 1847, converted the mare, by virtue of a process of fi fa. against Urias Wilson, a son of the plaintiff.

George Wilson, a son living with his mother, testified, that he bought the mare of a man of the name of Woollen in the Spring of 1847, and after trying and Gliding, that she worked kindly, sold her to his mother, and his mother, Urias having no animal with which to cultivate a crop1, loaned the mare to him.

Henry Suthern, who worked a part of the plaintiff’s farm in 18’47, also testifies, that George made the purchase cf Woollen, and riot long afterwards sold to the mother, and that "the'Vnother lent the mare to Urias.

Betsy Baker, defendants’ witness, swore: that the plaintiff said, she had found out that the mare was bought by George for Urias, and she (the mother) was angry •about it, and that George should make Urias pay him for it, else she would turn him off. It was accordingly agreed between the sons, that Urias was to pay George for the mare, as he might want it. She saw' a small sum paid. This witness, as well as several others, testified, that Urias worked and fed the mare during the summer of 1847.

■A man by the name of Baker, also a witness in behalf of the defendants, swore, the mare was bought by Urias, and that he worked her and- used her and claimed her as his property.

Pascal, another witness for the defendants, also swore, that Urias was the purchaser of the mare ; that she was selected by a man named Stewart, and that Urias rode her home and claimed her as his own.

Stewart, designated by the last witness as the person, upon whose judgment the purchase was made, swore, that he w’as not present at the sale at all, and knew nothing of it.

The defendants’ counsel, in the course of his "argument, when noticing the testimony of George Wilson, asked instructions from the Court, to the effect, that if he was believed to be corruptly false in any material particular, his testimony should be rejected altogether. In the reply of the plaintiff’s counsel, this rule for judging of witnesses was not denied, but expressly admitted to be correct.

The Court in the explanation to the jury did not notice the matter, for the reason, that the Court did not then, and does not now perceive, how it could be applicable to the plaintiff’s witness.

In the course of his Honor’s charge, he informed the jury, that if George sold and delivered the-mare to his mother for a reasonable consideration, the property in the animal would pass, although George at the time might bo under a promise to let his brother Urias ^have the mare whenever he might pay fot her, and although they might believe further, that this arrangement had been partially earned into effect by payment of a portion of the money.

This part of the charge was excepted to, because of a Want of evidence to make it pertinent.

Ünder other instructions from the Court, not objected to, the jury found a verdict in favor of the plaintiff.

Rule for a new trial was discharged. Judgment and appeal.

Kerr, for the plaintiff.

Morehead and Miller, for the defendants.

Pearson, J.

In the course of his Honor’s charge, he informed the jury, that, “if George sold and delivered the mare to his mother, for a reasonable consideration, the property in the animal would pass, although George at the time might be under a promise to let his brother Urias have the mare whenever he paid for her, and although they might believe further, that this arrangement had been partially carried into effect by payment of a portion of the money.”

This part of the charge was excepted to.

HisTlonor announced a clear proposition of law, that properiy passes by a sale and delivery, notwithstanding an executory agreement to sell to another, and the receipt of á part of the price. This part of the charge, we think, •was pertinent, and was Called for, to prevent a misapprehension on the part of the jury, as to this question of law. In fact it was the point uponWhich the caseturned.

Per Curiam, Judgment affirmed.