Opinion
(December Term, 1859.)
To constitute a pawn or pledge the property must be delivered to the pawnee.
TROVER, tried before Manly, J., at last Fall Term of CURRITUCK.
Jordan for plaintiff.
Hines for defendant.
The action was brought for an anchor and chain, in which it appeared that they had belonged to a man by the name of Sawyer, and were lost from his vessel in Currituck Sound in a gale of wind. Sawyer owed plaintiff's testator some amount (not disclosed), and told testator if he could find the anchor he might dispose of it and pay himself.
An anchor was found by defendant, which testator claimed to be the one lost by Sawyer, and he made a demand of it on board of Kinsey's vessel in the sound, when he answered: "I shall be passing here several times." At another time defendant said: "Let me keep (246) it, and when I get mine, which is at home, you shall have it."
The plaintiff contended, first, there had been a valid pledge of the anchor, etc., by way of pawn, which would enable him to sustain an action; and, secondly, there had been a bailment of them by plaintiff's testator to defendant, and the latter was not at liberty to deny plaintiff's right of property and possession.
The court was of opinion, to constitute a pawn or pledge for security so as to affect the rights of third parties, there must be a possession and delivery; and to constitute a bailment there must be a submission on Kinsey's part to hold under Owens, and, in that case, defendant would be bound to surrender it upon demand. Plaintiff excepted.
Verdict for defendant. Judgment. Appeal by plaintiff.
We concur in opinion with his Honor that to constitute a "pawn or pledge" the article must be delivered. A sale of personal property may be made, and the title will pass without delivery; so a mortgage of personal property may be made without delivery, for it is a sale to be void on the performance of a subsequent condition; consequently a sale or a mortgage may be made of a runaway slave, or an anchor which is lost in the bottom of Currituck Sound, and is not susceptible of delivery. But a pawn or pledge is a bailment of personal property to be kept until a debt is paid, so that delivery is of the very essence; the thing must be deposited, i. e., put into the possession of the party, otherwise no title passes, and he cannot maintain an action for the article against the owner who had promised to deliver it, or even against a wrongdoer who shows no title. Even if the article be delivered, and title is thereby acquired in it, as a pawn or thing pledged, it is necessary for the pawnee to continue his possession, for if he delivers it back to the pawnor he loses his title as against (247) creditors and bona fide purchasers, although he may recover it from the pawnor, or one who gets it in possession without title; but this supposes the bailment to have been originally perfected by a delivery. These positions are well settled. Doak v. Bank, 28 N.C. 309; Barrett v. Cole, 49 N.C. 40; Smith v. Sasser, ibid., 43, where the authorities are collected.
The other point, as to the alleged bailment by the plaintiff to the defendant after the anchor and chain were found, was properly left to the jury on the evidence.
PER CURIAM. No error.
Cited: Milling Co. v. Stevenson, 161 N.C. 512.