Robinson, Probate Judge v. . Ezzell, Register

72 N.C. 231

• Court: Supreme Court of North Carolina
• Decided: January 5, 1875
• Status: Published

Opinion

Rodman, J.

It was properly admitted in this Court that a mortgage of a crop to be grown either not planted, or immature, was a chattel mortgage, and that the defendant was entitled to a fee of twenty cents only upon its registration. Nothing is better settled upon authority than that fruoíus in- dustriales, although still growing or even if unplanted, are chattels. Benjamin on Sales, 95, 103, cites numerous cases to that effect upon the English Statute of Frauds.

The counsel for the defendant contends here however that the sixty cents here sued for, was paid voluntarily, with a full knowledge of the facts, and therefore cannot be recovered.

The point was not taken below. The case was evidently made up to present the single question which the counsel admitted was against him. If the point were open to the defen dant, it is against him, for there was certainly evidence from which the jury might have found that the payment was not voluntary. Whenever a person is compelled to pay to a public officer, in order to induce him to do bis duty, fees which he has no right to claim, they can be recovered back.

The defendant also contends that the plaintiff:cannot recover, because he paid the excessive fee as agent of the mortgagee, who would be entitled to recover it. The plaintifi'paid the fee as the friend, and in the interest of the mortgagee. But it does not appear that he had been requested to do so, or that the mortgagee subsequently ratified the act. The money paid was the plaintiff’s own and he is entitled to recover it.

Pee CtJRIAM. Judgment below affirmed.