Berry v. . Ellis

Connor, J. The agreements in writing executed by the plaintiff and the defendant, with respect to the property described therein, which is the identical property on which the sheriff of Durham County has levied under the warrant of attachment issued in this action, although in the form of leases, by reason of the manifest purpose of the parties, as disclosed by the terms of said agreements, are in reality conditional sales agreements. If not so construed, the notes referred to therein are for rent, and not for money loaned, as contended by plaintiff. The defendant concedes that the transactions between the parties as shown by their agreements were not in reality leases; he contends that these transactions were sales of the property and that the notes are for purchase money. Both plaintiff and defendant rely, therefore, upon the construction of their agreements in accordance with which it must be held that they are conditional sales agreements. As so construed, the legal effect of each of said agreements is that the title to the property described therein remains in the defendant, the nominal lessor, only for the purpose of securing the payment of the notes executed by the plaintiff, the nominal lessee. It is expressly stipulated in each of said agreements, that upon the payment of said notes by the plaintiff, and of a relatively small sum of money in addition thereto, the title to said property shall vest in the plaintiff as purchaser. In the leading case in this State of Puffer v. Lucas, 112 N. C., 317, 17 S. E., 174, the principle applicable in the construction of agreements such as those executed by the plaintiff and the defendant, in the instant ease, is stated as follows: “Where the transaction between the parties is in reality and in its legal effect, a contract of sale conditional upon the payment of the purchase price in successive installments, it cannot be modified, nor its legal effect avoided, by the fact that they speak of it as a lease, and call the installments rent.” In Hamilton v. Highlands, 144 N. C., 279, 56 S. E., 929, it is said: “This Court has steadily adhered to this just and equitable construction of such contracts.” See cases cited in the opinion. Both Puffer v. Lucas, supra, and Hamilton v. Highlands, supra, have been frequently cited and approved in subsequent decisions of this Court and are conclusive authorities in support of the construction of the agreements of the parties to this action, under which it was held by the court below that the title of the defendant to the property on which the sheriff of Durham County levied under the warrant of attachment issued in this action, is that of a mortgagee. Acceptance Corp. v. Mayberry, 195 N. C., 508, 142 S. E., 767, and cases cited. *286 For this reason, it must be beld tbat the interest of the defendant in said property was not subject to attachment. The statement of the law by Prof. McIntosh, in his “North Carolina Practice and Procedure,” on page 934, is supported by the decisions of this Court. He says that the officer to whom a warrant of attachment has been issued “may levy upon the share of a tenant in common in personalty (Ins. Co. v. Davis, 68 N. C., II) ; or upon the equity of redemption of a mortgagor of chattels (C. S., 617); but the interest of the mortgagee in the property contained in the mortgage is not subject to levy, such interest being only incident to his debt, which can be reached under garnishment proceedings. Bowen v. King, 146 N. C., 385, 59 S. E., 1044.” In the latter case it is said: “In the absence of statutory provision, the interest of a mortgagee in personal property while the mortgagor remains in possession, having also an interest therein, is not subject to levy by direct seizure, either under attachment or execution.” Freeman on Executions, secs. 118-184, 20 A. & E. Enc., 974. See, also, Willis v. Anderson, 188 N. C., 479, 124 S. E., 834, and Stevens v. Turlington, 186 N. C., 191, 119 S. E., 210. In the instant case, the property on which the attachment was levied was at the time of the levy in the possession of the plaintiff, who under his agreement in writing with the defendant, had the right to such possession as a mortgagor, and also the right, both in law and in equity, to redeem said property by the payment of his notes held by the defendant, and thus become the absolute owner of the property. The question discussed in the briefs as to whether a warrant of attachment against the property of a defendant in an action to recover a statutory penalty for usury may be granted, is not presented on this record. It has, therefore, not been considered or decided. See C. S., 798. There is no error in the judgment, It is Affirmed.