Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-11-11
Is q ~. "a 81
COURT | j ECIS.I ! [
y otes 's Sof Cases Recently Decided,
Il. ]; n y Which IA are ofs Interest to 4:
Our People, .'5
.3[1ll Sc BY W. B.2MARTIN. 8;
1Exclusively for virginian- Pilots

tEsxslusively Tor virxsnlanr Pllot,
Sg::E G MOORE y. BRAcY,
Supreme Court Of North Carolina,
October, 10, 1899.
10 70 .;BNFoR "a PARoL cRATrEL
MORTGAGE. 1T 4 MUST Be SUCH
AS 81 COULD BE ENFORCED 1F IN
WRITING. 3is, & Is n.
I 1 AN ACTION 3FORtTHE POSSESSION
OF ACKNOWLEDGEMENTS WILL
i NOT LIE AGAINST "A PERSON
8 WHO HAS TT NOT IN HIS POS
SESSION. OR CONTROL.
WHERE A PARTY SAID HE WOULD
49,, J. GIVE "A MORTGAGE ON A$BALE
4. OF COTTON. IN HIS TENANTS
HANDS, WHO HAD SEVERAL I'm
IIls POSSESSION, NO COTTON is
sC'1@NYEYBD NOR PARoL 1 MORT
-IGHfVALIDATED.
This was ON. action for the recovery
OF bale of cotton.
The court says: 5
The defendant seems to have been
indebted to the plaintiffs which they
agreed to be SIS, and, to secure the same
stated that one Henry Bracy, q tenant
OF defendant, would be due him O. bale
OF cotton as rent,and agreed verbally to
mortgage the same to plaintiff to secure
the payment Of the SIS This was in
FEBRUARY, and the action was brought
IN fOctober. Soft would seem that the
cotton that plaintiff contends was mort
gagged to him was to be planted and
raised after the date of the transaction
which plaintiff claims to have been
verbal mortgage. The terms OF this
agreement, according to the PLAINTIFFS
testimony, were as, follows: .'That
defendant told PLAINTIFF that at the end
OF the year tenant of his Gone Bracy)
would owe him n bale of cotton for
rent; thatrft would be worth s25: that
ne (defendanD would give plaintifr a
mortgage on the bale of cotton; =
that plaintiff accepted this offer, and
! looked for blank mortgage to reduce
1t to writing. but, finding none. he
called j. FL. Carter TO witness the agree
ment."' The defendant denied that he
: mortgaged plaintiff any cotton; denied
that he was in possession of any cotton
belonging to plaintiff. by mortgage or
otherwise, when this action was com
inenced. or afterwards; : and con-
tented that, admitting the converse zion
as stated by plairtir, 1t conveyed no
cotton.;t0 plafntiff, land thai his action
must fall. Thcgjustlce granted the
witt OF possession, and 1T was in
evidence by. the officer who had this
writor. order In his hand that he went
: to Henry Rracy. the party named as
tenant. and got n bale of cotton under
said order; that Bracy had other cot
ton, but he did not know whether 1t
was ginned or not. Upon this evidence.
under the Instructions of the court the
jury found verdict for the plaintiff,
upon which he had Judgment. Defen-
dant excepted, and assigned as grounds
Tor his exceptions the matters set out
above
parol mortgage may be enforced in
this state, but 1t must be such n
mortgage as could be enforced if 1t had
been in writing. And 1t seem to lis
that there is error and that the plaintiff
cannot sustain his action upon this
evidence, for two reasons, even if the
transaction between plaintiff and de-
PENDANT is sufficient to constitute n
mortgage.
An action for the possession of pro
perty must be brought against the
party in possession. We note the fact
that It Is said IN the last case cited
that the property must be in the defen-
dant's actual possession or under his
control. This must mean tina. IL is in
the possession of defendants agent,
attorney. OF factor, who would be
entitled to the control of the property.
IN this case the language OF the plain
tiff is that the defendant said that
Bracy would owe him a bale of cotton
1t is not claimed that the cotton sized
by the officer was in the actual possess
sion OF the defendant
But the further reason is that M
particular bale of cotton was named
or described. owe me a bale of
cotton. and 1t appears from plain
tiff's evidence that Bracy had other col
ton This being so. the mortgage con.
veyed no cotton, and PLAINTIFFS action
must fall on that account. New trial.
CITIZENS ST. r. co. v. HOWARD