Rogers v. . Booker

Clark, C. J. Upon this conflicting evidence, the court charged the jury as follows: “Now the mere fact that C. E. Booker was permitted to retain possession of the automobile was no implied authority to sell it free from lien of recorded mortgage, and would not have the effect of avoiding the validity of the mortgage, and would not give to the purchaser from C. E. Booker an unencumbered title. A recorded mortgage is a notice to all the world, if it is recorded in the proper county, C. S., 3311, and all that C. E. Booker could pass was his interest in said automobile. But if you find from this evidence, and by the greater weight thereof, that the plaintiff gave to Mr. C. E. Booker authority to sell the car free from lien of said mortgage, and thereby released the mortgage with respect to this automobile, agreeing that he would look only to 0. E. Booker to pay the debt, if you find these facts by the greater weight ■of the evidence you would answer the second issue ‘No,’ that is, if the defendant has satisfied you by the greater weight of the evidence that the plaintiff has released the lien and permitted him to sell it, then you would answer the issue No,’ and Mr. Eogers would not have any right to possession of the automobile, because he would have thereby waived his lien with respect thereto. So that presents the question here.” *186 This was tbe only assignment of error in tbis appeal, except to tbe judgment. Tbis was not tbe case of a mortgage upon a stock of goods wbicb was left in tbe bands of tbe mortgagor for sale. There was nothing to indicate in tbe remotest degree such state of facts. Tbe evidence is that Carr E. Booker borrowed money from tbe plaintiff and gave him a mortgage upon a single automobile as security, and that this, mortgage was duly and promptly recorded, and upon tbe charge tbe jury found that Carr E. Booker bad no authority, express or implied, to-sell it free from tbe lien of tbe recorded mortgage. There was no prayer for instructions, and there was no error in tbe respect assigned to tbe charge. We think, however, there was error in tbe judgment. On tbe issues-submitted, tbe jury found that there was due tbe plaintiff on tbe note and mortgage described in tbe complaint, $500; that tbe plaintiff was-entitled to tbe possession of tbe automobile by virtue of said mortgage; and that tbe value of tbe automobile at tbe time of tbe seizure under; claim and delivery was $800, and tbe court rendered judgment that tbe plaintiff recover possession of tbe automobile, and if that cannot be bad,, that be recover of tbe defendant and bis surety $800, tbe value of said automobile at tbe time of seizure, and costs of tbe action, to be discharged upon payment by defendants of said $500, and costs. Tbe court gave tbe plaintiff judgment for $500, without interest,, because tbe loan was tainted with usury. C. S., 2306; Smith v. B. & L. Assn., 119 N. C., 255; Ward v. Sugg, 113 N. C., 489; Fowler v. Trust Co., 141 U. S., 406. Tbe usury did not impair tbe validity of tbe mortgage, and only forfeits tbe interest. Spivey v. Grant, 96 N. C., 214. But tbe defendant acquired a valid title to tbe vendor’s interest in tbe automobile subject to tbe mortgage, and be is entitled to have tbe judgment modified if be so desires to direct a sale thereof and payment to-him of tbe surplus, if any, after payment of $500, and costs. Tbe defendant has bad tbe use of tbe automobile, and if it has-deteriorated in value below $500, and costs, since tbe bond in claim and delivery was given, tbe plaintiff, if so advised, can have bis damages-sustained thereby assessed. C. S., 836; Randolph v. McGowans, 174 N. C., 203, on motion and inquiry in the cause. Hendley v. McIntyre, 132 N. C., 276; Hall v. Tillman, 103 N. C., 276. Tbe judgment, as above stated, is Modified and affirmed.