Cowan v. . Davidson

13 N.C. 533

• Court: Supreme Court of North Carolina
• Decided: December 5, 1830
• Status: Published

Opinion

Hall, Judge.

As far as I am capable of understanding tiie question litigated between the parties, it is this ; whether the mortgage, under which the Defendant claimed, or the executions, under which the Plaintiff claimed the negroes levied upon, gave the preferable title. It has been decided in Davidson v. Beard, (2 Hawks 520) the decision in which suit, it appears, was to decide the controversy between the parties, that the execution levied on the slaves gave a preferable right to any claimed by the Defendant, under the unregistered mortgage. It is true., that a new trial was granted in that case, as the consequence of that opinion; but the question of law was completely settled, as it was decided upon a case agreed. Of this opinion was the Judge below, and I think the pule for a new trial, against that opinion, ought to bo discharged.

It may have been the case, or it may be the case, if the former suit has not yet been decided, that the Judge on the second trial may give an opinion, in favor of the rights claimed under the mortgage; but such opinion is subject to the opposite party’s right of appeal to this Court, where the law of the case has been otherwise held, as before stated.

Per Curiam. — Let the judgment of the Court below be affirmed.