Ellison v. . Jones

26 N.C. 48

• Court: Supreme Court of North Carolina
• Decided: December 5, 1843
• Status: Published

Opinion

Daniel-, J.

The horse in controversy had been the property of the plaintiff; and the instrument of writing-, which Dawson executed, declares that “ the said horsé is to be Henry Ellison’s horse till paid for.” These words were inserted, to repel any inference that might arise from the antecedent words in the instrument, that, the title to the horse had passed, and was executed in Dawson. The said words shew the understanding of the parties to be, that the contract was executory — but a conditional sale. There could have been no necessity for Ellison to have taken- a mortgage' o-n the horse to secure the price, unless there had been a prior absolute sale of the' horse to Dawson. We think that the instrument is only evidence of a conditional sale, and that it is not a mortgage and, therefore, did not require to be registered. Dawson’s possession of the horse was only a bailment by Ellison. The judgment must be affirmed,

Pee. Curiam* Judgment affirmed*