#### GEORGE T. PENNY v. O. J. LUDWICK and F. J. BAME.

(Filed 20 April, 1910.)

1. Pleadings — Mortgagor and Mortgagee — Claim and Delivery— Counterclaim — Accounting—Questions for Jury.

In an action to declare valid a sale of property under mortgage described in tbe pleadings, tbe possession of wbicb bad been obtained under claim and delivery proceedings, damages by way of counterclaim being alleged in tbe answer, -tbe defendant mortgagors are entitled to an accounting to ascertain tbe amount realized at tbe sale in excess of the mortgage debt,, and for such excess, if any, they are entitled to judgment, thus raising a question for the jury; and therefore plaintiff’s motion for judgment upon tbe pleadings should be denied.

2. Claim and Delivery — Wrongful Seizure — Damages—Issues.

When tbe pleadings in an action to declare valid a sale of property under mortgage raise questions as to whether the mortgage bad been released, and tbe sale was unlawful, and tbe property wrongfully seized under claim and delivery proceedings, tbe defendant, if successful, is entitled to judgment “for a return of tbe property, or for tbe value thereof in case return cannot be bad, and damages for tailing and withholding tbe same” (Revisal, sec. 570), and issues were properly submitted to tbe jury to ascertain the value of tbe property alleged to have be.en wrongfully converted.

3. Claim and Delivery — Wrongful Seizure — Damages—Tender.

Tbe fact that tbe verdict of tbe jury has established that tbe plaintiff wrongfully seized, under claim and delivery proceedings, and sold defendant mortgagor’s property, and tendered tbe unsold property in excess of the debt, without a finding that such excess of property is not in plaintiff’s possession or under bis *376control, does not discharge the plaintiff from liability to defendant; and the question as to whether the tender was a valid one and would thereafter relieve the plaintiff -from paying interest, does not arise.

• 4. Claim and Delivery — Mortgagor and Mortgagee — Excess—Verdict — Judgment—Interest—Damages, Unliquidated.

When the verdict of the jury has only established that plaintiff has wrongfully converted to his own use an excess of property in a certain sum over that required to pay off defendant’s mortgage to him, the.judgment thereon should not include interest from the time of the alleged conversion, but only. from the date of the judgment, the conversion being a tort and the damages unliquidated; and when on appeal the judgment of the court is erroneous in this respect only, it will be ordered to be amended and affirmed.

Appeal by plaintiff, from G. W. Ward, J., at January Term, 1910, of Guilpobd.

The facts are stated in the opinion of the Court.

Thomas J. Gold and Stedmcm & Coolce for plaintiff.

Justice & Broadhurst for defendant.

Walker, J.

This action was brought by the plaintiff for the purpose of having declared valid or lawful a sale of the property described in the pleadings, and for the payment to the plaintiff of the amount due him on the note secured by the mortgage from the proceeds of sale. When the action was commenced, the plaintiff instituted proceedings under claim and delivery as ancillary to his principal suit, and caused certain property to be seized, under the requisition issued by the clerk of the court, the value of which, it appears from the verdict of the jury as hereinafter set out, was largely in excess of the amount due to the plaintiff. The defendant answered, and alleged that the plaintiff had converted a part of the property which the jury in their verdict have valued at $2,500, though the defendant claimed a much larger amount than the sum so stated. ■

The following issues were submitted to the jury:

1. Was it agreed between plaintiff and defendant that plaintiff would release the mortgage held by him against Thomas upon the cafe outfit, as alleged by the defendant? Answer: Yes.

2. Is plaintiff the owner of and entitled to the possession of articles of personal property mentioned in the complaint? Answer: No.

3. What was the value of the personal property that was sold at public auction, and also that which perished, if any? Answer: $700.

*3774. "What was tbe value of tbe property that was unsold and did not perish? Answer: $1,800.

5. Did plaintiff tender to defendants tbat wbicb was unsold, and if so, wbat date? Answer: Yes; on or about 7 October. 1907.

Tbe plaintiff, wbo appealed in tbe action, bas reserved only two assignments of error. Tbe first of these is tbat tbe court refused, at tbe request of tbe plaintiff, to give judgment upon tbe pleadings. This prayer was properly refused, as there were issues of fact presented in the case, wbicb were for tbe jury to determine. Tbe motion of tbe plaintiff for judgment was based upon tbe ground tbat tbe defendants, in their answer, bad sought to recover of tbe plaintiff damages by way of counterclaim. If the sale was a lawful one, we have held tbat tbe defendants, occupying tbe position of mortgagors, were entitled to an accounting between tbe plaintiff and themselves, in order to ascertain tbe amount realized at tbe sale, in excess of wbat was necessary to pay tbe plaintiff’s claims, and tbe amount so ascertained tbe defendant would be entitled to recover and to have a judgment entered therefor. Smith v. French, 144 N. C., 2. But in tbis case tbe jury have found tbat tbe mortgage bad been released, and was not, therefore, an encumbrance upon tbe property; tbat tbe plaintiff is not tbe owner of and entitled to tbe possession of the personal property mentioned in tbe complaint.

It would appear, therefore, by these findings of tbe jury tbat there bad been an unlawful conversion of tbe property by tbe plaintiff, or, in other words, tbat he was not entitled to tbe ancillary remedy of claim and delivery. Tbe plaintiff seized tbe property under tbe requisition in tbe claim and delivery proceedings, and, as we have said, tbe jury have found tbat tbe seizure was wrongful. In such a case it is provided as follows: “If tbe property bas been delivered to tbe plaintiff, and tbe defendant claims a return thereof, judgment for tbe defendant may be for a return of tbe property, or for tbe value thereof in case a return cannot be bad, and damages for taking and withholding tbe same.” Revisal, sec. 570. It was proper, therefore, to submit issues to' tbe jury in order to ascertain tbe value of tbe property thus unlawfully converted. Tbe jury found that property of tbe value of $700 could not be returned by tbe plaintiff, and tbat there was left property of tbe value of $1,800, wbicb could be returned; in other words, wbicb is, or should be, in tbe possession of the plaintiff. Tbe court entered judgment for the' $700, with interest from 31 August, 1907, and as tO' tbe property which tbe jury valued at $1,800, *378it is provided, in. tbe judgment that the cause be retained for further directions, until it can be ascertained how much of this property can be returned, SO' that if a part of this property cannot be returned, the value of such part may be ascertained and judgment entered in favor of the defendants against the plaintiff for the amount assessed by -the jury. The defendants would be entitled to an execution for a return of so much of the property as can be found by the sheriff.

The plaintiff contends that he made a tender' of the property to the defendants, and they refused to accept the same; but this does not discharge him from liability to the defendants, as there is no finding in the verdict of the jury to the effect that the property is not now in the possession of the plaintiff or under his control. In passing upon the validity of the judgment in this case, or the exceptions of the plaintiff thereto, we are confined to a consideration of the verdict, and are not. at liberty to examine the evidence and find the facts for ourselves. Whether the plaintiff, if he has made a good and valid tender to the defendant of the property, will be entitled to a discharge from the interest upon the value of the property from the date of the tender, provided the jury should see fit to allow interest as a part of the damages, is a question which is not now before us for decision. Stephens v. Koonce, 103 N. C., 266; Lance v. Butler, 135 N. C., 419.

The defendant also excepted upon the ground that the court had allowed interest from the alleged date of conversion, 31 August, 1907, on the $700, found by the jury to be the value of the property which cannot be returned. We think it was error to allow interest on this amount, as the conversion was a tort and the damages were unliquidated. The very question is decided in Lance v. Butler, supra, in which the Court said: “The defendant properly asked that the third issue should be, ‘Was the plaintiff damaged by such sale; if so, how much ?’ Had it been submitted in that form, the jury, in their discretion, could have allowed interest from the date of the conversion. Stephens v. Koonce, 103 N. C., 266. In the form actually submitted, ‘What was the value of the goods sold by the defendant under his mortgage?’ the jury responded, ‘$300.’ Upon this finding it was error to allow interest, except from the date of the judgment. Code, sec. 530 (Revisal, sec. 1954). Besides, the date of the conversion, ‘6 February, 1895,’ as stated in the judgment., is not found by the verdict. This error, therefore, does not call for a new trial, but the judgment will be affirmed, so that the $300 shall bear interest only fiom the date of the judgment.” The two cases seem to be practically identical as to the *379question presented for consideration. In accordance witb wbat was said in tbat ease, we direct that tbe judgment be modified by allowing interest only from its date, and, as thus amended, the judgment of tbe court below is affirmed. Tbe costs of tbis Court will be divided equally between tbe parties, tbat is, tbe plaintiff will pay one-balf and tbe defendants tbe other balf thereof.

Modified and affirmed.