James v. Greenville Lumber Co. , 122 N.C. 157 ( 1898 )

Clark, J.,

concurring: It seems to me that this is the test: where the material furnished to keep the business going is something that is consumed in the use, as coal for instance, or labor performed or a tort committed, which are intangible and unmortgageable, or is such material as goes into and makes part of the realty or the product in such a way as to be undistinguishable from the mass, as timber put into a building, or cotton that is manufactured, these things come within the purview of the remedy provided by The Code, Section 1255; but where the subject matter for which the debt is incurred keeps its identity, as an engine, even though built into the wall, this section does not apply (and Sec-1781 would not apply) because the party had his remedy by retaining title or taking a mortgage on the property sold. For .this reason neither Section 685, 1255 nor 1781 here apply. The Code, Section 685, does not apply for the additional reason that the action was not brought within 60 days after registration of the mortgage, nor Section 1781 for the additional reason that no lien was filed.

Furches, J., concurs in the concurring opinion. Faircloth, C. J., dissents.