Redman v. . Ray , 123 N.C. 502 ( 1898 )

This is an action commenced by Redman Wilbar against Ray Edwards to recover a lot of sawed lumber. Their claim is based on two contracts of Ray Edwards with plaintiffs — one of 3 September, 1896, and the other of 10 February, 1897. By leave of court, J. G. Williams was allowed to interplead in this action, and he claims that the lumber sued for belongs to him. He bases his (506) claim on what he calls a bill of sale from Ray Edwards, which is in the following terms:

"Know all men by these presents, that we, W. M. Edwards and W. C. Ray, of the county of Madison and State of North Carolina, for and in consideration of the sum of $500 in hand paid by J. G. Williams of the county of Buncombe, said State, do by these presents sell, transfer and deliver to the said J. G. Williams all lumber that is to be manufactured on said yards, known as the Whitt Shelton yards, which is now logged on Upper Laurel in Madison County, thereby giving the said J. G. Williams all the rights we have to sell or remove said lumber, with all our rights of ingress and egress to the same at each and every place where said lumber is situated, and giving to said J. G. Williams all rights that we have in regard to said lumber. This 10 January, 1896." (Signed) William M. Edwards, W. C. Ray.

This instrument is prior in date of either of the contracts under which plaintiffs claim, and was in form probated and registered in Madison County before the date of plaintiff's contracts. But it was admitted by the interpleader Williams on the trial, and is stated in the case on appeal, that Ray and Edwards were indebted to Williams at the date of said contract in the sum of $400 or $500, and that he was furnishing them supplies to enable them to operate their business, and that the same was given to secure said past indebtedness, and also to secure further advancements that he might make to them.

The appellant Williams being an interpleader, the only issue presented, so far as he is concerned, is as to whether he is the owner of the lumber sued for or not; and the burden of this issue — to show that he is — was upon him. Wallace v. Robinson, 100 N.C. 206; (507)Bank v. Furniture Co., 120 N.C. 475.

The instrument under which the interpleader claims title has no clause of defeasance, or conditions that show that it was a mortgage or security to Williams, and did not need to be registered. But it was shown and admitted that it was in fact intended as a security, and this fact not appearing in the instrument, it was incapable of being registered, and was "void as to creditors and subsequent purchasers." Gulley v. Macey,84 N.C. 434; Barnhardt v. Brown, 122 N.C. 589.

It is probable that Williams' claim would be good as against Ray Edwards, as a verbal mortgage may be good against the mortgagor of personal property.

Therefore, while no issue could be tried on this interplea, except as to Williams' title to the lumber, still, as he showed an apparent title as against Ray Edwards, the original owners, and as plaintiffs also claimed to have derived their title from Ray Edwards at a subsequent date to that of Williams' claim, this called in question their title. The plaintiffs are only entitled, as against Williams, upon the ground that they are "subsequent purchasers" from Ray Edwards; and if their claim, apparently an unconditional sale, was in fact a mortgage — a security for debt, as Williams' bill is — they would have no title as against Williams, who is a good "prior creditor," and who has a bill of sale, good as against Ray Edwards, the debtors.

But so far as we can see from the evidence and from the statement of the case on appeal, it was shown that the sale to the plaintiffs was absolute in terms, and that the plaintiffs had paid Ray Edwards for the lumber. And no exception of the interpleader presents the question that it was not an absolute sale by Ray Edwards to the (508) plaintiffs Redman Wilbar.

The interpleader has some exceptions to the admission of evidence, also an exception to the first issue submitted by the court, which is as follows: "Is the interpleader, J. G. Williams, the owner of the lumber described in this action?" which issue was answered in the negative. He also asked the court to instruct the jury that upon the evidence the first issue should be answered "Yes."

The exceptions have all been considered, and none of them can be sustained.

Affirmed.

Cited: Maynard v. Ins. Co., 132 N.C. 713.