Rose v. . Coble , 61 N.C. 517 ( 1868 )

The plaintiff claimed a special property in the mare in question, under a pledge by one Garner his brother-in-law, dated 13 October, 1866, made to secure him as his creditor and also as his surety. She had been delivered to the plaintiff, and was in his possession when taken by the defendants, who were constables having claims in their hands against Garner. It was shown that after the plaintiff had taken possession of the mare, Garner again had her in his possession and offered her for sale at Greensboro; but he and Rose both swore that he did this as the agent of Rose, and that the proceeds of the sale, if effected, were to have been applied to the debt due to the latter. There was evidence also that Garner was much in debt, and was seeking to elude certain creditors.

His Honor charged the jury, (1) that any fraudulent purpose of Garner to which Rose was not a party, would not affect the latter, but if there was an arrangement between them to defraud Garner's creditors, the plaintiff could not recover; (2) that if Rose (518) had received the mare bona fide as a pledge for debts, its subsequent temporary possession by Garner, if this were as agent of Rose, would not affect the plaintiff's right to recover; but if Garner's possession were for himself, that was inconsistent with the idea of a pledge, and in such case the plaintiff could not recover.

Verdict for the plaintiff. Rule for new trial discharged. Judgment and appeal. As regards the first point made by his Honor, the question of title did not arise, as defendants were tort-feasors. Worth v. Northam, 4. Ire., 102. The ruling however was correct. See Stone v. Marshall, 7. Jon., 300.

To support the second point in the charge, they cited Story Bail., sec. 299; 2 Kent, 745, note (2); Macomber v. Parker, 14, Pick., 497, etc.;Bodenhammer v. Newsom, 5. Jon., 107; Reeves v. Capper, 4. Bing., N.C. 54; 2 Taunt., 268. The defendant's first objection is, "that the transaction was fraudulent." Whether there was fraud or not was a question of fact for the jury, under proper instructions from the court. That part of the charge which was excepted to is, "that any fraudulent purpose on the part of the pledgor, to which the pledgee was not a party, did not affect the pledge." We see no error in this. To render a contract void for fraud, the fraud must affect the contract. A contract (519) is not the purpose of one but the agreement of two minds.

The defendant's second exception cannot be sustained. It is true that to the validity of a pledge it is necessary that there should be a delivery to the pledgee, and that his possession should continue, and that the pledge is lost by giving the pledgor the control of it. But the fact that the pledgee authorized the pledgor as his agent to take the mare to Greensboro to try to sell her to raise money to pay the debt for which she was pledged, does not contravene that rule, because the possession of the agent was the possession of the principal.

It was insisted for the plaintiff in this Court, that the defendants were tort-feasors and therefore could not question his title. That would be true if this were an action of trespass but, it is not true in an action oftrover, which involves the title and in which it is alleged that the defendants found and converted his property. But the other points being for the plaintiff, this is not material. There is no error.

PER CURIAM. Judgment affirmed.

Cited: Lassiter v. Davis, 64 N.C. 500; Bruff v. Stern, 81 N.C. 189;Trust Co. v. Forbes, 120 N.C. 358; Calvert v. Alvey, 152 N.C. 613;Sneeden v. Nurnberger's Market, 192 N.C. 441.

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