Harris v. . Allen

10 S.E. 127, 104 N.C. 86

• Court: Supreme Court of North Carolina
• Decided: September 5, 1889
• Status: Published

Opinion

Shepherd, J.

(after stating the case).

First Exception. — For that the Court charged that the plaintiff’s mortgage “ being only registered in Wake County, was sufficient as against execution creditors, of whom the defendant was one.”

The Code, § 1254, provides that mortgages upon personal property shall be registered in the county where the mortgagor resides. We know of no law requiring a new registration of mortgages of personal property whenever the mortgagor changes his residence. Weaver v. Chunn, 99 N. C., 431.

Second Exception. — For that parol testimony was admitted to identify the property, “ the said mortgage being insufficient as against creditors.”

In support of this exception, the defendant relies upon Atkinson v. Graves, 91 N. C., 99, and Rountree v. Brilt, 94 N. C., 105.

In the first case, there was a mortgage on “ one bale of good middling cotton that I may make or cause to be made or grown during this year.” Held, to be insufficient because “ it does not designate and identify the property sought to be conveyed, so it could be separated from other property of like kind raised by the mortgagor.” In Rountree’s case, the 'mortgage was upon “ my entire crop of every description.” Held, to be insufficient, because the place where the crop was to be raised was not described. It was intimated, however, that parol testimony was competent to fit the description to the property and show the agreement of the parties. Neither case is in point, nor do they conflict, in the slightest degree, with the well settled law that the words “ all the personal property of every kind of which (one) is possessed,”' will pass chattels in existence and possession at the time of the conveyance. Jones Chat. Mort. 65; Herman Chat. Mort., 75.

Third Exception. — “ That the plaintiff should be compelled to resort to the singly charged estate conveyed in the mortgage, before suing this defendant.”

Even if this were a proper case for marshalling, the power would not be exercised to the prejudice of the homestead. “ To apply the principle in such a case, would be but an indirect way of subjecting a homestead to the payment of the debts, when the very object of the law is to confer a homestead exemption, superior to all creditors, and ever consecrated, except so far as it may be impaired by the voluntary act of the claimant himself.” Ruffin, J., in Butler v. Stainback, 87 N. C., 216.

Fourth Exception. — This is not insisted upon in this Court.

The defendant objected in this Court to the form of the judgment. No error, in this respect, is assigned in the case upon appeal, and as the judgment rendered is not inconsistent with the record, it will not be disturbed.

Affirmed.