Butts v. . Screws

Ashe, J. (after stating the facts). There are many cases in the reports of the decisions of this Court, where the Court has been called upon to put a construction upon instruments similar in terms to this contract, and it has been almost uniformly held, that they are evidences of conditional sales. To that effect is Clayton v. Hester, 80 N. C., 275; Ellison v. Jones, 4 Ired., 48; Ballard v. Sudderth, 10 Ired., 176; Vassar v. Buxton, 86 N. C., 335; Paris v. Roberts, 12 Ired., 268. The difference between this and those cases is, that this was a parol agreement, and the others were in writing, but it is nevertheless, according to the authorities, in its terms a conditional sale, and the defendant insisted that inasmuch as it was a conditional sale, the condition was void, the sale not having been reduced to writing and registered, as is required by §1275 of The Code. The section provides, that “all conditional sales of personal property, in which title is retained by the bargainor, shall be reduced to writing, aud registered in the same manner, for the same fees, and with *218 the same legal effect as is now provided by law for chattel mortgages.” This section has had the construction of this Court. In Brem v. Lockhart, 93 N. C., 191, the Court held that the effect of the Act requiring all conditional sales of personal property to be reduced to writing and registered, is to render inoperative as against creditors and purchasers for value, so much of the contract as reserves the title in the vendor, unless and until the contract is registered. As between the parties, the sale is binding without registration, and is only void if not reduced to writing and registered as against creditors and purchasers for value. Deal v. Palmer, 72 N. C., 582; Gay v. Nash, 78 N. C., 100; Reese v. Cole, 93 N. C., 87. And as between the parties it is not essential that it should be reduced to writing, for the Act gives to conditional sales the same effect as that given by law to chattel mortgages; but chattel mortgages are not required to be reduced to writing, except when it is necessary to have them registered to validate them against creditors and purchasers for value, and then only for the reason they could not be registered without being reduced to writing. But as between the parties, where there are no creditors or purchasers to be affected by the transaction, the mortgage of personal property, is good at common law without being reduced to writing. It is so laid down in Benjamin on Sales, p. 2, where the text is supported by numerous authorities. But aside from this, it is familiar learning, for which no authority need be cited, that at common law a sale of personal chattels is good without writing. Here there are no creditors or purchasers whose rights are interfered with. The transaction is confined entirely between the parties to the original contract of sale, and we can see no reason why the plaintiff may not- have judgment for the property, unless he may be debarred from a recovery by some of the other exceptions taken by the defendant. *219 The exception taken to the summons, on the ground that the deputy who signed and issued it had never been sworn and inducted into office, is untenable. The defendant had pleaded by filing his answer before the exception was taken. It was then too late, even if well founded, to take any exception to the process by whieli he was brought into Court. Duffy v. Averitt, 5 Ired., 455; Mills v. Carpenter, 10 Ired., 297. The other exception to the ruling of his Honor, in allowing the Deputy Clerk to affix his signature to the requisition, is no ground for a venire de novo, for even if his Honor had no power to allow the amendment, it was perfectly harmless, for the action being in nature of detinue for the recovery of specific property, and it appearing that the plaintiff had the right to recover the property in that form of action, it was entirely unnecessary for him to resort to the ancillary remedy of claim and delivery, for upon the law and facts of the case, he was entitled to a verdict, even if that proceeding had been omitted. Whether then it was error or not in the Court to allow the signature to be affixed to the order of requisition, it was immaterial, and in no way prejudiced the defendant. There is no error. The judgment of the Superior Court is affirmed. No error. ' Affirmed.