#### L. C. CARROLL v. MARTHA and ISAAC JAMES and A. L. WILSON.

(Filed 27 September, 1911.)

Claim and Delivery — Mortgages—Payments—Other Property— Pleadings — Admissions—Burden of Proof — Appeal and Error.

In defense to an, action of claim and delivery of mortgaged property, the defendant contended,- among other things, that certain tobacco delivered to the plaintiff, not embraced in the mortgage, was sold by the plaintiff, who retained the proceeds of the sale, except $112, which he paid to a certain agricultural lienor, at the request of the plaintiff. The amount due under this lien was admitted in the pleadings, and, Held, error for the trial judge to put upon the plaintiff the burden of proving it. A new trial is ordered, as the record does not disclose whether the jury, in their verdict, allowed plaintiff this as a credit.

Appeal from Peebles, J., at June Term, 1910, of Carteret.

This is an action to recover personal property under a chattel mortgage executed by Csesar James, who is dead. The property was seized under claim and delivery proceedings issued in this action, and delivered to the plaintiff, and sold by him.

The defendants are the administrator of Csesar James and his grandson. They allege in their answer that a part of the property seized was not embraced in the chattel mortgage; that other parts of the property were bought by the plaintiff, at the sale under the mortgage, for less than its value, and that after the death of Csesar James, the plaintiff took into his possession *69and sold 5,000 pounds of tobacco belonging to James, and that lie retained all of the proceeds of the sale of the tobacco, except $112, which he paid T. Z. and A. 0. Newberry, at the request of the defendants.

The sum of $112 paid to Newberry, at the request of the defendants, out of the proceeds of the sale of the tobacco, was due on an agricultural lien executed by Casar James to E. H. and J. A. Meadows, and transferred by them to Newberry.

There was a controversy between the parties as to the amount of property that went into the hands of the plaintiff, its value, and as to the state of the account between them.

The plaintiff, among other things, contended he was entitled to charge against the defendants the sum of $112 paid to New-berry.

The court charged the jury on this contention as follows: “In order for the plaintiff to get credit for the amount of the Meadows mortgage, it was incumbent upon him to show what was due on the Meadows mortgage, because the mortgage was an agricultural lien; it was a promise to advance so much money, and not to exceed so much money, and when the plaintiff saw fit to pay on the Meadows mortgage $112, in order to sustain that payment it was necessary for him to show that Meadows had at that time advanced on that agricultural lien $112, including the interest that was due; there was no interest due on the Meadows claim until 1 November, 1908.”

Plaintiff excepts. There was a verdict and judgment for the defendant, and the plaintiff excepted and appealed.

Simmons & Ward and G. JR. Wheatley for plaintiff.

Abernethy & Davis for defendant.

AlleN, J.,

after stating the case: The charge of his Honor, placing the burden on the plaintiff to prove the item of $112, is erroneous and entitles the plaintiff to a new trial. It would have been correct but for the fact that the defendants allege in their answer that this sum was paid by the plaintiff out of the proceeds of the sale of the tobacco, at the request of the defendants, and the plaintiff admits this in his reply.

*70Being a fact admitted by tbe pleadings, it was not in controversy, and tbe burden was not on tbe plaintiff to establish it.

Tbe error was tbe result of an inadvertence, as is shown by tbe statement made by tbe presiding judge, which is attached to tbe case on appeal. He says that be overlooked tbe answer of tbe defendants as to tbe $112, and that bis attention was not called to it.

As tbe item is admitted, we would direct it to- be credited on tbe amount recovered by tbe defendants, instead of ordering a new trial, if we bad any means of ascertaining tbe decision of tbe jury with reference to it; but we cannot say, on tbe record, that it has not already been allowed, and as tbe question was submitted to them erroneously, we must order a new trial.

New trial.