Parris v. Roberts, 34 N.C. 268, 12 Ired. 268 (1851)

Aug. 1851 · Supreme Court of North Carolina

34 N.C. 268, 12 Ired. 268

DAVID PARRIS vs. PIERCE ROBERTS.

A. and ÍB. entered into the following agreement in writing : ‘‘ Sold to B. one I gray filly for one hundred and fifteen bushels of corn, which the said filly stands good to the said (A.), as his own right and property, until she is paid for.” Signed and scaled by A. Held, that the legal title to the mare still remauunl in A. and that the sale was only conditional.

The c4se of Ellison v. Jones, 4 Ire. 48. cited and approved.

Appeal from the Superior Court of Law of Buncombe County, Special Term, July 1851, his Honor Judge Bailey presiding.

This was an action of trover.

The plaintiff owned a horse, which he agreed to sell to one W. 1). Jones upon the terms set forth in a paper writing, which is as follows:

“March the 20th day, 1848„ This day sold to Wm. D.„ Jones one gray filly for one hundred and fifteen bushels of corn, which the said filly stands good to the said David' Parris as his own right and property, until she is paid for. Given under my hand and seal, signed and delivered in the presence of WJVL. I). JONES. (Seal.)

“Test. M. M. Jones.” ■

The horse was delivered to Jones. In July lb'48 one Leander Mills levied an execution upon the said horse, as the property of Jones, and sold the same, the plaintiff being present and forbidding the sale. Mills was at the time of the levy and sale the deputy of the defendant, who was the sheriff of Buncombe County.

Two questions arose in the case : 1st, whether the property in the horse passed to Jones according to the written agreement, or did it remain in the plaintiff? And 2ndly: Suppose it remained in the plaintiff, did Mills, by what he did under the execution, subject himself, and consequently the defendant, as his principal, to this action ?

The Court charged the jury, that, according to a proper ■construction of the written agreement, the property in the horse remained in the plaintiff; and that, if Mills sold the same under an execution, and was acting at the time as the deputy of the defendant, the defendant would be liable.

The jury found a verdict for the plaintiff, and the defendant appealed.

Avery, for the plaintiff.

J. W. Woodjin, for the defendant.

Nash, J.

In the charge of his Honor there is no error. By the contract between the plaintiff and Jones, the legal ¡title to the horse sold is expressly, reserved. The title did not .pass to Jones — the sale was but conditional. Ellison v. Jones, 4 Ire. 48, Gaither v. Teague, 4 Ire. 65. The present case in principle is the. same with those. Here, the plaintiff expressly reserves the title to the horse sold, until the price is paid, and Jones, the purchaser, gave his note for the price, which was not due when the constable sold. We are at a loss to perceive upon what principle the case was brought here.

Per Curiam. Judgment affirmed.