Rogers v. . Ray

155 S.E. 253, 199 N.C. 577, 1930 N.C. LEXIS 184

• Court: Supreme Court of North Carolina
• Decided: October 15, 1930
• Status: Published

Opinion

Per Curiam.

This is a civil action brought- by J ames E. Eogers against Jesse H. Eay, to recover judgment on a note secured by a chattel mortgage and possession of six motor trucks described therein, and claim and delivery proceeding was instituted to recover possession of said motor trucks. The Mack International Motor Truck Corpora tion intervened in tbe action and claimed to be the holder of a first lien on one of the six motor trucks, to wit, one 2V2-ton Mack, Model 1-AB, Chassis No. 576855, by reason of a conditional sales agreement recorded prior to the chattel mortgage held by the plaintiff. The plaintiff contended that the intervener’s first lien had been lost by reason of its having taken and recorded two other conditional sales agreements covering said truck subsequent to the recordation of his chattel mortgage and introduced evidence tending to sustain the contention that the chattel mortgage of plaintiff was a first lien.

“The intervener becomes the actor and the burden of the issue is on the intervener.” McKinney v. Sutphin, 196 N. C., at p. 321.

The exception and assignment of error made by the intervener: “For that the court erred in overruling the intervener’s motion for a directed verdict in its favor and against the plaintiff when the plaintiff rested his case.” The court below overruled this motion, and in this we see no error.

The evidence was not strong, but more than a scintilla and sufficient to be submitted to the jury. The charge of the court below is not in the record. The presumption is that the court below stated in a plain and correct manner the evidence given in the case and declared and explained the law arising thereon. C. S., 564. In the judgment we find

No error.