Bank of Duplin v. Hall

Brogden, J. The execution of the chattel mortgage, dated 10 December, 1924, was acknowledged before S. D. Pittman, notary public, who was cashier of the bank, the grantee in the mortgage, and the Boyle Ice *573 Company insists that said mortgage was void. This contention, however, cannot be sustained. C. S., 3345. It has been held that a grantee in such an instrument is not qualified to take the acknowledgment thereof. Cowan v. Dale, 189 N. C., 684, 128 S. E., 155. The Boyle Ice Company further asserts that it had a lien upon the personal property described in the mortgage by virtue of a levy duly made by the sheriff of Duplin County on or about 19 July, 1927. No lien is acquired upon personal property in this State until a levy is duly made. C. S., 675, subsection 1; McIntosh, North Carolina Practice and Procedure, pp. 844-845. Consequently, the question arises: Did the sheriff make a proper levy upon said personal property? The return of the sheriff is prima facie evidence of a proper levy. Perry v. Hardison, 99 N. C., 21. The essential elements of a levy are discussed and applied In re Phipps, 202 N. C., 642. The levy in the case at bar does not comply with the principles of law heretofore declared. In the first place, the return of the sheriff does not recite a levy nor disclose an itemized statement of the property seized. Indeed, the express language of the return would apparently exclude the conclusion that the property was either actually or constructively seized. The following declaration of the court in Perry v. Hardison, supra, is directly in point and conclusive: “Here the prima facie proof is rebutted, and it is shown there never was any levy, and that the goods remained uninterfered with, in the defendant’s hands, and were appropriated by him to his own use.” In re Phipps, supra. See, also, C. S., 682. While the forthcoming bond recites a levy, it is manifest upon an inspection of the record that no legal levy was made, and hence the Ice Company acquired no lien by virtue thereof. The record discloses that the bank held a chattel mortgage given by the Halls in December, 1924, and that this mortgage covered practically the same property as the chattel mortgage of July, 1927. There is no evidence that the Halls were insolvent in 1924, or that the chattel mortgage then given was for a preexisting debt, or that the property described therein was practically the entire property of the mortgagors. The giving of another mortgage in 1927, nothing else appearing, did not discharge the lien of the existing mortgage given in 1924. This principle was announced in Wilkes v. Miller, 156 N. C., 428, 72 S. E., 482, as follows: “The substitution of one note and mortgage for another will not discharge the lien of the original note and mortgage unless the latter is surrendered to the mortgagor, or canceled of record. It is only a renewal or acknowledgment of the same debt.” An examination of the entire record does not disclose the presence of reversible error. Affirmed.