Lester Piano Co. v. Loven

OlaeicsoN, J. Is tbe plaintiff, under tbe above facts in tbis claim and delivery proceeding, barred by tbe tbree-year statute of limitation? We tbink so. N. C. Code, 1931 (Michie), sec. 441 (1) and (4), are as follows: “Witbin three years an action — (1) Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in tbe preceding sections. . . . (4) For taking, detaining, converting or injuring any goods or chattels, including action for their specific recovery.” In Battle v. Battle, 116 N. C., 161 (163-164), it is said: “Tbe Code, sec. 172 (C. S., 416), requires an acknowledgment or new promise to be in writing left tbe effect of a partial payment in removing tbe bar of tbe statute of limitations as it was before tbe Code of Civil Procedure. Bank v. Harris, 96 N. C., 118. Tbe effect of partial payment in stopping tbe running of tbe statute is not by virtue of any statutory provision. It was not in tbe statute of James I, but was an exception allowed by tbe courts, and its application depends upon tbe reasoning in such decisions. Tbe Act of 9 George IV, C 14, in a similar way to our statute, merely recognizes tbe exception as existing. Partial payment is allowed tbis effect only when it is made under such circumstances as will warrant tbe'clear inference tbat tbe debtor recognizes tbe debt as then existing and bis willingness, or at least bis obligation, to pay tbe balance.” Nance v. Hulin, 192 N. C., 665. C. S., 416. N. C. Practice and Procedure in Civil Cases (McIntosh), sec. 131. Tbe contract sued on is not under seal and there is no new promise or partial payment on tbe note. Tbe plaintiff alleges in its complaint of claim and delivery tbe following: “Tbat tbe plaintiff is tbe owner of tbat certain upright piano made by Lester Piano Company, No. 87317, Style Mab 40, by virtue of a conditional sale and retention title contract executed by tbe defendant to tbe title to said piano, of which contract tbe plaintiff is tbe owner thereof.” N. C. Code, 1931 (Michie), sec. 830, is as follows: “The plaintiff in an action to recover tbe possession of personal property may, at tbe time *100 of issuing tbe summons or at any time before, answer, claim tbe immediate delivery of tbe property as provided in tbis article.” In Wilson v. Hughes, 94 N. C., 182 (185-186), citing numerous authorities, is tbe following: “We observe that tbis is called an 'action of claim and delivery.’ Properly and strictly speaking there is nO‘ such action. The action commonly so-called is an action to recover tbe possession of personal property — some specific chattel — and is of tbe nature of tbe action of detinue under tbe common-law method of procedure. 'Claim and delivery of personal property’ is a provisional remedy, incident and ancillary, but not essential to tbe action. Tbe object of such incidental provision is to enable tbe plaintiff, upon giving an undertaking in double tbe value of tbe property in question, with approved security, as required by tbe statute, to obtain tbe immediate possession of tbe same, unless tbe defendant shall give a similar undertaking and security for its delivery to tbe plaintiff, if it shall be so adjudged, and for tbe payment of such costs as may be adjudged against him in tbe action. Thus, tbe property, or tbe value of it, is made secure pending tbe action, in such way as to answer tbe purpose of tbe final judgment. Tbis provisional remedy is peculiar to tbe Code method of procedure, and gives tbe action something of tbe nature of the action of replevin at tbe common law. “ 'Claim and delivery’ of tbe property may be omitted, and tbe action may be simply to recover tbe possession of tbe specific chattel, as in detinue, or to recover tbe value of tbe property as in trover or trespass. In any case, it is incident to an action and provisional only.” See Foreclosure of Conditional Sales, sec. 2587. House v. Parker, 181 N. C., 40. Tbe defendant in her answer pleaded tbe three-year statute of limitations : “That if tbe defendant is due tbe plaintiff any amount whatsoever, which she now denies, it has been a number of years since any demand was made upon her by plaintiff for payment, until at tbe time of or immediately before tbe institution of tbis action, and it has been more than three years since any payment has been made to tbe plaintiff on its alleged account against her, and tbe defendant now pleads tbe three-year statute of limitations as a bar to plaintiff’s right to recover in tbis action.” We think that section 441 (1) and (4), supra, bars tbe plaintiff’s ancillary claim and delivery proceeding. Tbe present proceeding concerns personal property. N. C. Code, 1931 (Micbie), sec. 437: “Within ten years an action — (2) Upon a sealed instrument against tbe principal thereto. (3) For tbe foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where tbe mortgagor or grantor has been in possession of tbe property, within ten years after tbe *101 forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same.” N. C. Code, 1931 (Michie), sec. 2589, is as follows: “The power of sale of real property contained in any mortgage or deed of trust for the benefit of creditors shall become inoperative, and no person shall execute any such power, when an action to foreclose such mortgage or deed of trust for the benefit of creditors would be barred by the statute of limitations.” The holding in Menzel v. Hinton, 132 N. C., 660, and in Cone v. Hyatt, 132 N. C., 810, that the power of sale in a deed of trust or mortgage is not barred by the statute of limitations, though an action for foreclosure thereon is barred, is changed by this section, supra. Humphrey v. Stephens, 191 N. C., 101. For the reasons given, the judgment of the court below is Affirmed.