Opinion
(August Term, 1851.)
A. and B. entered into the following agreement in writing: "Sold to B. one gray filly for 115 bushels of corn, which the said filly stands good to the said (A.) as his own right and property until she is paid for." Signed and sealed by A. Held, that the legal title to the mare still remained in A., and that the sale was only conditional.
APPEAL from Bailey, J., at BUNCOMBE Special Term, July, 1851.
Trover. The plaintiff owned a horse, which he agreed to sell to one W. D. Jones upon the terms set forth in a paper-writing, which is as follows:
"20 March, 1848. This day sold to William D. Jones one gray filly for 115 bushels of corn, which the said filly stands good to the said David Parris as his own right and property until she is paid for. (269) Given under my hand and seal, signed and delivered in the presence of: WILLIAM D. JONES. (SEAL)
"Test: M. M. JONES."
The horse was delivered to Jones. In July, 1848, one Leander Mills levied an execution upon the said horse as the property of Jones and sold the same, the plaintiff being present and forbidding the sale. Mills was at the time of the levy and sale the deputy of the defendant, who was the sheriff of Buncombe County.
Two questions arose in the case: first, whether the property in the horse passed to Jones according to the written agreement, or did it remain in the plaintiff? and, secondly, suppose it remained in the plaintiff, did Mills, by what he did under the execution, subject himself, and consequently the defendant as his principal, to this action?
The court charged the jury that according to a proper construction of the written agreement, the property in the horse remained in the plaintiff, and that if Mills sold the same under an execution and was acting at the time as the deputy of the defendant, the defendant would be liable.
The jury found a verdict for the plaintiff, and the defendant appealed.
Avery for the plaintiff.
J. W. Woodfin for defendant.
In the charge of his Honor there is no error. By the contract between the plaintiff and Jones, the legal title to the horse sold is expressly reserved. The title did not pass to Jones — the sale was but conditional. Ellison v. Jones, 26 N.C. 48; Gaither v. Teague, id., 65. Here the plaintiff expressly reserves the title to the horse sold until the price is paid, and Jones, the purchaser, gave his note for the (270) price, which was not due when the constable sold. We are at a loss to perceive upon what principle the case was brought here.
PER CURIAM. No error.
Cited: Clayton v. Hester, 80 N.C. 277; Frick v. Hilliard, 95 N.C. 119; Butts v. Screws, id., 217; Whitlock v. Lumber Co., 145 N.C. 124.