Jordan v. . Wetmur

Clarkson, J. The first issue, which is determinative of the action, is as follows: “Is the intervener the owner of and entitled to the possession of the ear sued for?” The court below charged the jury “If you believe the evidence and all the evidence you will answer that issue “No.” We think the charge of the court below correct under the facts and circumstances of this case. The Carolina Discount Corporation is the intervener in this action. The burden is on it to show title — it has the laboring oar. Speaking to the subject, it is held in Hill v. Palillo, 181 N. C., at p. 532: “In -such a proceeding the intervener is not called on or required, and indeed he is not permitted to question the validity of plaintiff’s claim against defendant, nor to file any answer thereto which denies or tends to deny its validity. On the contrary, the intervener has himself become the actor in the suit and on authority is restricted to the issue whether his claim of right and title is superior to that of the original plaintiff.” Lockhart v. Insurance Co., 193 N. C., at p. 12. It will be noted that the conditional sales agreement under which the intervener claims the automobile is dated 16 January, 1930. It is therein recited “Wetraur Motor Company had on the date thereof agreed to sell and C. G. Howard agreed to buy a Ford touring car,” etc. The terms were all settled and agreed upon in writing — “The coming together of two minds on a thing done or to be done.” Overall Co. v. Holmes, 186 N. C., at p. 431. This conditional sales agreement was signed by Howard on 16 January, and “all he had to do was to come back and bring the cash payment and get the car, which he did on the 18th.” On the 16th Howard *283 made a chattel mortgage to W. C. Jordan, the plaintiff, "which was ■duly recorded on that day. Plaintiff Jordan agreeing to lend Howard on the car $126 taking his note and chattel mortgage. On 18 January plaintiff went to the records and found nothing prior to this chattel mortgage and gave Howard the money. On the same day Howard gave 'Wetmur Motor Company'the amount agreed upon under the conditional •sales agreement. 0. S., 3312, is as follows: “All conditional sales of personal property in which the title is retained by the bargainor shall be reduced to writing and registered in the same manner, for the same fees and with the same legal effect as is provided for chattel mortgages, in the county where the purchaser resides, or, in case the purchaser shall reside out of the State, then in the county where the personal estate or some part thereof is situated, or in case of choses in action, where the donee, bargainee or mortgagee resides.” Under C. S., 3311, provision is made as to registration of chattel mortgages. In Ellington v. Supply Co., 196 N. C., at p. 789, citing numerous authorities, is the following: “In construing the registration laws of this State, this Court has consistently held that no notice, however full and formal, will supply the place of registration.” Duncan v. Gulley, 199 N. C., 552. Under the facts and circumstances of this case, to have priority over plaintiff’s chattel mortgage the conditional sales agreement should have been recorded first. Plaintiff took precaution to examine the record before lending his money to Howard on the chattel mortgage which was recorded, the conditional sale was not recorded at that time. In Best v. Utley, 189 N. C., at p. 364-5, the following observation is made: “The public policy, upon which our registration laws are founded, favors an interpretation and construction of statutes relative to probates and registration,- which will encourage confidence in records affecting titles, rather than suspicion, doubt, or uncertainty.” The intervener has the burden to show title, from the facts appearing on this record, we do not think it has done this. In the judgment in' the court below, wo find No error.