Mitchell v. Battle

55 S.E.2d 803, 231 N.C. 68, 1949 N.C. LEXIS 463

• Court: Supreme Court of North Carolina
• Decided: November 2, 1949
• Status: Published

Opinion

Seawell, J.

Authority in this State is against the position taken by the defendant. Hall v. Tillman, 115 N.C. 500, 20 S.E. 726; Observer Co. v. Little, 175 N.C. 42, 94 S.E. 526; House v. Parker, 181 N.C. 40, 106 S.E. 137.

Conditional sales contracts in which title is retained as security for the debt are treated here as chattel mortgages in this respect and statutes relating to chattel mortgage foreclosures and incidents have more than an analogical force. In S. v. Stinnett, 203 N.C. 829, 832, 167 S.E. 61, Justice Brogden says for the Court: “Moreover, it has been definitely determined that a title retaining contract of the type disclosed by the present record is in effect a chattel mortgage,” citing Harris v. R. R., 190 N.C. 480, 130 S.E. 319; to which we add Charles Hackley Piano Co. v. Kennedy, 152 N.C. 196, 67 S.E. 488. See Mordecai’s Lectures, pp. 566, 567; Williston on Contracts, sec. 734 et seep; Vold, Sales, pp. 289, 291.

It may be inferred from G.S. 45-24 that repossession of the title-retained property is not to be referred to the principle of rescission, but to the power of sale given by the statute, and the necessity of repossession in aid of the public sale and delivery of the chattel to the purchaser. The property does not return to the vendor in virtue of his right to its use as owner, nor is it repossessed by him for that purpose. Chapter 856, Session Laws of 1949, which is not applicable here, may well be considered to be declarative of a principle already obtaining. (27 N.C.L.R. 49.)

Conclusive on the point is Hall v. Tillman, supra, which we do not find modified in subsequently reported cases. In this case note the explicit statement by Justice Avery, speaking for the Court, at p. 504.

The judgment overruling the demurrer is affirmed.

Affirmed.