Opinion
(September Term, 1889.)
Mortgage — Registration — Evidence — Homestead — Descriptive Words.
S., in 1884, being then a resident of the county of Wake, executed to the plaintiff a mortgage, conveying certain lands of (less value than $1,000), and "all the personal property of every kind of which he was then possessed"; the deed was only admitted to probate and registered in Wake. Subsequently, the mortgagor removed to the county of Franklin, taking with him the personal property in controversy, a portion of which defendants claimed by virtue of mortgage, executed after the removal to Franklin, and duly recovered therein, and a portion under execution sale in an action to recover the possession. Held —
1. That it was not necessary to register the mortgage in Franklin County after mortgagor's removal thereto.
2. That the words "all the personal property," etc., were sufficient to pass the title to the chattels in existence and possession at the time of the conveyance, and that the parol testimony was competent to identify it.
3. That even if this were a proper case for marshaling assets, that power would not be exercised to the prejudice of the mortgagor's homestead.
ACTION for the recovery of a mule and wagon, tried before (87) Avery, J., at the April Term, 1888, of FRANKLIN.
C. M. Cooke for plaintiff. (89)
N. Y. Gulley for defendants.
The plaintiff claimed under a mortgage executed to him by Robert Strickland and wife, registered in the county of Wake on 28 March, 1884. At the time of the execution and registration, the mortgagor lived in the county of Wake. The mortgage conveyed certain real estate in Wake County, and "all the personal property of every kind of which they possessed." About two years after the execution of the mortgage, the mortgagors moved to Franklin County, taking with them the property in controversy. The mortgage was never registered in Franklin County, and the mortgage debt has never been paid.
The jury found that the land was worth only $700, and that the homestead had never been laid off. The defendants claimed the wagon and harness under a subsequent mortgage, executed after the removal to Franklin, and duly registered. This property was sold, leaving a balance due, which defendants reduced to judgment. Under this judgment the mule was sold. The property was replevied by the defendants and sold. Defendants bought the mule at the sheriff's sale; it does not appear who bought the wagon.
First Exception. — For that the court (90) charged that the plaintiff's mortgage "being only registered in Wake County, was sufficient as against execution creditors, of whom the defendant was one."
The Code, sec. 1254, provides that mortgages upon personal property shall be registered in the county where the mortgagor resides. We know of no law requiring a new registration of mortgages of personal property whenever the mortgagor changes his residence. Weaver v. Chunn, 99 N.C. 431.
Section Exception. — For that parol testimony was admitted to identify the property, "the said mortgage being insufficient as against creditors."
In support of this exception, the defendant relies upon Atkinson v. Graves, 91 N.C. 99, and Rountree v. Britt, 94 N.C. 105.
In the first case, there was a mortgage on "one bale of good middling cotton that I may make or cause to be made or grown during this year." Held, to be insufficient because "it does not designate and identify the property sought to be conveyed, so it could be separated from other property of like kind raised by the mortgagor." In Rountree's case, the mortgage was upon "my entire crop of every description." Held, to be insufficient, because the place where the crop was to be raised was not described. It was intimated, however, that parol testimony was competent to fit the description to the property and show the agreement of the parties. Neither case is in point, nor do they conflict, in the slightest degree, with the well settled law that the words "all the personal property of every kind of which (one) is possessed," will pass chattels in existence and possession at the time of the conveyance. Jones Chat. Mort., 65; Herman Chat. Mort., 75.
Third Exception. — "That the plaintiff should be compelled (91) to resort to the singly charged estate conveyed in the mortgage, before suing this defendant."
Even if this were a proper case for marshaling, the power would not be exercised to the prejudice of the homestead. "To apply the principle in such a case, would be but an indirect way of subjecting a homestead to the payment of the debts, when the very object of the law is to confer a homestead exemption, superior to all creditors, and ever consecrated, except so far as it may be impaired by the voluntary act of the claimant himself." Ruffin, v. J., in Butler v. Stainback, 87 N.C. 216.
Fourth Exception. — This is not insisted upon in this Court.
The defendant objected in this Court to the form of the judgment. No error, in this respect, is assigned in the case upon appeal, and as the judgment rendered is not inconsistent with the record, it will not be disturbed.
Affirmed.
Cited: Strouse v. Cohen, 113 N.C. 352; Bank v. Cox, 171 N.C. 79.