Harris v. . Woodard

Davis, J., (after stating the facts). It is conceded that the-mule described in the note and in the mortgage is the mule claimed by the defendant, and the subject of this action. The question presented is: Did the plaintiff, whether claiming as mortgagee, or as the equitable owner of the legal title, retained by the legal vendor, (which passed to him with the assignment of the note,) lose his right to have the-mule subjected to the payment of his debt, by reason of the misdescription, or incorrect description, contained both in the note and in the mortgage? The answer is not free from difficulty, but after careful consideration, we are of opinion that he does not. In Hall v. Younts, 87 N. C., 291, the horse sued for was described as- *236 “ a dark chestnut horse,” and in the mortgage as “ a black horse,” and when it was proposed to put the mortgage in evidence, it was objected to because of this discrepancy in the description, and the Judge was requested to charge the jury, that there was no evidence that the horse sued for was the one conveyed in the mortgage. The Court held differently, and admitted the mortgage. The identity of the horse was a question of fact for the jury, and as it was admitted in that case that the horse mentioned in the complaint was the same as that mentioned in the mortgage, (though described differently,) the evidence in regard to the identity was nfeedless. Whenever it becomes necessary to identify the property conveyed in a mortgage from property of a similar kind, or to show what was intended to be conveyed, extrinsic and parol evidence is admissible. Herman on Chat. Mort., §39. In Goff v. Pope, 83 N. C., 127, the Chief Justice said: “ The identity of an assigned article of property, and the means of ascertaining it, are largely dependent upon extrinsic proofs, of the force and sufficiency •of which the jury must judge.” The intention of the parties will not be defeated by a false description of the thing conveyed. In this case, the mule, though incorrectly described both in the note and the mortgage, is the identical mule, as the fact is found, claimed by the defendant. Under the conditional sale, the title to the mule did not pass to Silas Lassiter until he had paid for it, and the description contained in the note, whether accurate or inaccurate, could not mislead him, or protect any one claiming under him, nor could the misdescription contained in the mortgage protect him, for he purchased of Pharaoh Lassiter, who had no title at all. It becomes immaterial in this case, fo consider whether the plaintiff is entitled to recover on his mortgage or on his equitable title acquired by the assignment of the note by Tyson. *237 As against Lassiter, or any one claiming under him, his-title is good, whether by the one way or the other. It was-the defendant’s misfortune to. purchase from one who had no title, and the well known maxim, caveat emptor, applies,, and this disposes of the 1st, 2d and 3d ground upon which the defendant based his right to hold the mule. But 4th, Pharaoh Lassiter exchanged the mule with the defendant for a horse, which he carried home, and “Silas-Lassiter, having fully approved of the exchange, suffered the horse to be kept and used on his farm until the animal’s, death, without any offer or attempt to return it to the defendant,” and the defendant insists that this “ was a ratification of the exchange effected by his son, and made him a purchaser of the mule for value, of the mortgagor.” The son had no title and the father had none, and the ratification by the latter of the worthless title of the former added nothing to its value. The plaintiff never ratified it, but .“ on being informed of the exchange several days after its-consummation, demanded the mule,” and on refusal, instituted this action. The judgment of the Court below was for the plaintiff,, and this is affirmed. Let this be certified. No error. Affirmed.