Smith v. . Bynum , 92 N.C. 108 ( 1885 )

Ashe, J.

(after stating the facts). The plaintiff claimed the mule in controversy by virtue of several mortgages executed by Ketter Vines and Frank Vines. The first, a mortgage recorded in March, 1881, to King & Smith, to which the plaintiff succeeded as their assignee. On the 9th of January, 1882, the plaintiff settled the first mortgage by taking a new note for two hundred and forty-three dollars payable to himself, and due on the first of November, 1882, to secure which he took from the Vines a second mortgage bearing even date with the note, which was recorded on the 10th day of January, 1882, and on the 8th day of January, 1883, he came to a settlement with the mortgagors upon the last mortgage, and received from them a new note for two hundred and forty-two dollars payable like the last, due the first of November, 1883, to secure which he procured from the Vines the third mortgage bearing the same date with the note, and recorded on the 21st day of February, 1883.

The defendant claimed the mule by purchase from one Dunn, who was introduced by him as a witness and testified that he got the mule from Frank Vines in December, 1882, without notice of any mortgage, and traded it to the defendant.

There was no error in the instructions given by His Honor to the jury. If the plaintiff had not come to a settlement with the mortgagor on the mortgage of the 9th day of January, 1882, and taken a new note with another mortgage to secure it, his lien under that mortgage would have continued and he would have had the right to recover in the action, but by his settlement and taking a new note in settlement, with a mortgage to secure it, the mortgage of the 9th day of January, 1882, was discharged, became extinct and the plaintiff lost his lien under it, and the defendant having purchased the mule prior to the date of the last-mortgage, acquired a good title. The judgment of the Superior Court is therefore affirmed.

No error. Affirmed.