Sharpe v. . Pearce

74 N.C. 600

• Court: Supreme Court of North Carolina
• Decided: January 5, 1876
• Status: Published

Opinion

ByNüm J.

The plaintiff sold and delivered to Miller a sorrel horse, at the same time taking a mortgage upon the same horse and other property to secure the purchase money and other debts. Miller, the mortgagor, afterwards traded the horse for another — a bay horse about twelve years old, with the consent of the plaintiff and with the,understanding that he should stand in the mortgage iu the place of the sorrel. After this, the mortgagor traded off the bay horse to the defendant for another horse alleged to have been worthless; whereupon the plaintiff brought his action of claim and delivery against the defendant for the bay horse.

The only description of the horse given in the plaintiff’s mortgage is, that Miller “ does by these presents bargain, sell and convey to the said John B. Sharpe, and his heirs and assigns one horse,” &c. The demurrer admits these facts, and the question raised is, whether the plaintiff can maintain his action. . The trade of the sorrel horse for the bay with the assent of the plaintiff, vested the title of the bay in the mortgagee, as against the mortgagor, but how did it effect third persons without notice ? The defendant Pearce traded for a b iy horse; the mortgage was of a sorrel. The very purpose of the registration laws was to prevent frauds upon creditors and purchasers, by requiring that the deed must describe the subject matter of the conveyance, so as to denote upon the instrument itself, what it is in particular, or refer to something else to make it certain. Kea v. Robinso , 5 Ired. Eq. 373. Jones v. Morris, 7 Ired. 370. Gregory v. Perkins 4 Dev. 50. 1 Ired. 340. 2 Ired. 449. Suppose the defendant had searched the Register’s books to find out whether there was a lien upon the bay horse for which he was about to trade. He would have ascertained there, that Miller had mortgaged to the plaintiff “ one horse ” without farther description. Had he then gone outside of the deed to learn what horse was meant, he would have found that it was a sorrel horse that was mortgaged, and not a bay.

To hold that such a mortgage is valid, and constructive notice to the defendant, would be to hold that the registration laws, winch were designed to prevent fraud, were themselves a trap and a fraud upon honest purchasers. Against third persons without notice, the mortgage did not embrace the bay-horse and the plaintiff had no title as against the defendant.. "We do not think Hubbard v. Winburn, 4 Dev. and Bat. 137, cited by the plaintiff’s counsel, conflicts with our decision in this case.

There is no error.

Pee Curiam. Judgment afiirmecL