Owens v. Kinsey, 52 N.C. 245, 7 Jones 245 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 245, 7 Jones 245

ZACHARIAH OWENS Ex'r, v. WILLIAM KINSEY.

To constitute a pawn or pledge, the property must be delivered to the paw-nee.

This was an action of trover, tried before Manly, J., at the last Fall Term of Currituck Superior Court.

The action was brought for an anchor and chain, in which it appeared, they had belonged to aman by the name of Sawyer; and were lost from his vessel in Currituck sound in a gale of wind. Sawyer owed plaintiff’s testator some amount, (not disclosed,) and told testator if he could find the anchor he might dispose of it and pay himself.

An anchor was found by defendant which testator claimed to be the one lost by Sawyer, and he made a demand of it on board of Kinsey’s vessel in the sound, when he answered, “I shall be passing here several times.” At another time, defendant said, “Let me keep it, and when I get mine, which is at home, you shall have it.”

The plaintiff contended 1st, there had been a valid pledge of the anchor, &c., by way of pawn, which would pnable him to sustain an action; and 2ndly, there had been a bailment of them by plaintiff’s testator to defendant, and the latter was not at liberty to deny plaintiff’s right of property and possession.

The Court was of opinion, to constitute a pawn or pledge for security, so as to affect the rights of third parties, there must be á possession and delivery; and to constitute a bailment, there must be a submission on Kinsey’s part to hold under Owens, and, in that case, defendant would be bound to surrender it upon demand. Plaintiff excepted.

Verdict for defendant. Judgment. Appeal by plaintiff.

Jordan, for the plaintiff.

Ilines, for defendant.

Pearson, C. J.

We concur in opinion with his Honor, that to constitute a “pawn or pledge,” the article must be delivered. A sale of personal property may be made, and the title will pass without delivery; so a mortgage of personal property may be made without delivery, for it is a sale to bo void on the performance of a subsequent condition, consequently a sale or a mortgage may be made of a runaway slave, or of an anchor which is lost in the bottom of Cnrrituek sound and is not susceptible of delivery. But a pawn or pledge is a bailment of personal property to be kept until a debt is paid, so that delivery is of the very essence; the thing must be deposited, i. e. put into the possession of the party, otherwise, no title-passes, and he cannot maintain an action for the article against the owner who had promised to deliver it, or even against a wrong-doer, who shows no title. Even if the article be delivered, and title is thereby acquired in it, as a pawn or thing pledged, it is necessary for the pawnee to continue his possession, for if he delivers it ba^ck to the pawn- or, he loses his title as against creditors and Iona fide purchasers, although he may recover it from the pawnor, or one who gets it in possession without title; but this supposes the bailment to have been originally perfected by a delivery. These positions are well settled; Doak v. State Bank, 6 Ired. Rep. 309; Barrett v. Oble, 4 Jones’ Rep. 40; Smith v. Sasser, Ibid 43, where the authorities are collected.

The other point as to the alleged bailment by the plaintiff to the defendant, after the anchor and chain were found, was properly left to the j ury on the evidence.

Per Curiam,

Judgment affirmed.