Clark Bros. v. Hill

23 S.E. 91, 117 N.C. 11

• Court: Supreme Court of North Carolina
• Decided: September 5, 1895
• Status: Published

Opinion

Clark, J. :

The plaintiffs earnestly contend that the terms of the contract were those sot forth in their reply to Moss, when the “steam-feed” was shipped, i. e. a lease upon payments of rent, as stated, and on the last payment of rent the property to belong to Moss, in the meantime the title to be retained by the vendor. Conceding this to be correct, such contract was in effect a conditional sale. Calling it a “lease” did not make it one, when its terms showed it was not. This was held in Puffer v. Lucas, 112 N. C., 377, which has been since cited and approved in Crinkley v. Egerton, 113 N. C., 444; Barrington v. Skinner, at this term. This agreement not being registered, the stipulation fi >r retention of the title by the vendors was in valid as to third parties, (Oode, Sec. 1275.) The property in dispute, by the mode of its attachment, became a “fixture” as between Moss and this defendant’s assignor, they being mortgagor and mortgagee (Horne v. Smith, 105 N. C., 322; Overman v. Sasser, 107 N. C., 432,) and enured to tbe benefit of the mortgagee. Foote v. Gooch, 96 N. C., 265.

The court should have instructed the jury, as prayed by the defendant, that upon all the evidence the plaintiffs were not entitled to recover.

Error.