Moore v. . Brady

Furches, J. This action was commenced before a Justice of the Peace for the possession of a bale of cotton, plaintiff claiming that he was the owner of the same by virtue of a verbal mortgage. The defendant seems to have been indebted to the plaintiffs; which they agreed to be $25, and to secure the same stated that one Henry Bracy, a tenant of defendant, would be due him a bale of cotton as rent; and agreed verbally to mortgage the same to plaintiff, to secure the payment of the $25. This was in February and the action was brought in October. So it would seem that the cotton that plaintiff contends Avas mortgaged to him was to be planted and raised after the date of the transaction which plaintiff claims to haAre been a verbal mortgage. The terms of this agreement, according to the plaintiff’s testimony, was as follows: “That defendant told plaintiff that at the end of the year a tenant of his, one Bracy, would owe him a bale of cotton for rent: that it Avould be Avorth $25 ; that he, defendant, would give plaintiff a mortgage on the bale of cotton; that *37 plaintiff accepted this offer and looked for a blank mortgage to reduce it to writing, but finding none, be called J. H. Carter to witness tbe agreement.” The defendant denied that he mortgaged plaintiff any cotton ; denied that he was in possession of any cotton belonging to plaintiff by mortgage or otherwise, when this action was commenced or afterwards; and contended that, admitting the conversation, as stated by plaintiff, it conveyed no cotton to plaintiff, and that his action must fail. The Justice granted the writ of possession and it was in evidence by the officer who had this writ or order in his hand, that he went to Henry Bracy (the party named as tenant) and got a bale of cotton under said order; that Bracy had other cotton, but he did not know whether it was ginned or not. Upon this evidence, under the instructions, of the Court, the jury found a verdict for the plaintiff, upon which he had judgment. Defendant excepted and assigned as grounds for his exceptions the matters set out above. A parol mortgage may be enforced in this State, but it must be such a mortgage as could be enforced if it had been in writing. And it seems to us that there is error, and that the plaintiff can not sustain his action upon this evidence for two reasons, even if the transaction between plaintiff and defendant is sufficient to constitute a mortgage. An action for the possession of property must be brought against the party in possession. Haughton v. Newberry, 69 N. C., 456; Webb v. Taylor, 80 N. C., 305. We note the fact that it is said in the last case cited that the property must be in the defendant’s actual possession or under his control. This must mean that it is in the possession of defendant’s agent; attorney or factor, who would be entitled to the control of the property. In this case the language of the plaintiff is that the defend *38 ant said that Bracy would owe him a bale of cotton. It is not claimed that the cotton seized by the officer was in the actual possession of the defendant. But the further reason is that no particular bale of cotton was named or described — “Will owe me a bale of cotton — and it appears from plaintiffs evidence that Bracy had other cotton. This being so, the mortgage conveyed no cotton, and' plaintiff’s action must fail on that account. Blakely v. Patrick, 67 N. C., 40; McDaniel v. Allen, 99 N. C., 135. New trial.