#### R. B. ROBERTS v. W. T. HUDSON.

(Filed 6 March, 1912.)

1. Claim and Delivery — Title—Interpleader—Burden of Proof.

In claim and delivery, an interpleader claiming title to the property as the vendee of defendant has the burden of proving the title in his vendor.

2. Contracts, Written — Conditional Sale — Parol Contracts — Reservation of Title — Statute of Frauds.

A ijarol contract of conditional sale of personal property is not valid as against an innocent purchaser for value unless reduced to writing and recorded; when the contract is executory, the title thereunder does not vest in the vendee until the purchase price has been paid.

3. Contracts, Parol — Personal Property — Reservation of Title — Ven- . dor and Vendee — Purchaser.

The only evidence of a parol contract, sued on, being that plaintiff permitted the defendant to c-ut cross-ties on his land at a certain price each, and allowed the defendant to haul them for convenience of shipping to a railroad, reserving the title in-himself until the ties were paid for, the title to the ties does not vest until the payment for them has been made, and a purchaser thereof from the defendant cannot acquire any 'title, as his vendor .had. no title to convey.

Appeal’ by plaintiff from Ferguson, J., at October Term, 1911, of EeaNkliN.

The facts are sufficiently stated in the opinion of the Court by Mr. Chief .Justice Ciarle.

W. H. Yarborough, Jr., for plamtiff.

T. T. Hieles for defendant.

Olakk, O. J.

The defendant ~W. T. Hudson, by permission of plaintiff, cut 516 cross-ties on the latter’s land and hauled them to Youngsville, where he deposited them on the right of way of the defendant railroad under an agreement that they were not to be moved thence till paid for. Hudson owed to the defendant Bullock money on a mortgage, and consented to furnish ties in payment thereon. These ties were about being loaded on the cars for the Pennsylvania Railroad Company, to whom Bullock had sold them, when the plaintiff took out claim and deliv*211ery for recovery of tbe ties. Bullock was not served witb process, but on bis own application was made a party as inter-pleader (Revisal, 800), gave bond, and claimed tbe ties.

Tbe plaintiff testified tbat be allowed Hudson to cut tbe ties and baúl tbem to Youngsville under an agreement tbat tbe title was to remain in himself until tbe ties were paid for; tbat Hudson afterwards told him that be expected to sell tbe ties to Bullock, who would send plaintiff a check direct for tbe money, but that in tbe meantime tbe title t<? tbe ties would remain in. plaintiff till they were paid for; tbat be never saw Bullock and did not receive tbe check. Hudson agreed to pay tbe plaintiff 12% cents each for tbe ties, without grading. Hudson was to receive from Bullock 30, 35, and 50 cents for tbe ties, according to grade.

There was no conflicting testimony, and tbe court charged tbe jury tbat if they believed tbe evidence of tbe plaintiff to return a verdict for tbe amount of tbe cross-ties at 12% cents each, $64.50. This presents tbe question whether tbe contract between tbe plaintiff and Hudson was a conditional sale or an executory contract. If it was tbe former, tbe plaintiff could not recover, because tbe contract was not reduced to writing and recorded.

The defendant Bullock being an interpleader, tbe burden was upon him to show tbat tbe title of tbe property bad passed to Hudson. Manufacturing Co. v. Tierney, 133 N. C., 630, and cases cited. This be did not do, because tbe undisputed evidence is tbat tbe contract between 'the plaintiff and Hudson was that tbe title to tbe ties was to remain in tbe plaintiff till paid for. Tbe plaintiff did not part witb tbe right of possession, but merely permitted tbe ties, as a matter of convenience, to be hauled to tbe station, there to remain, without being loaded on tbe cars, till tbe sale should be consummated by payment of tbe purchase money, upon which, and not until then, tbe title was to pass. Hpon tbe attempt being made to load the ties upon tbe cars, tbe plaintiff promptly asserted bis right of possession by claim and delivery.

Tbe line between an executory contract and a conditional sale is sometimes difficult to draw, but here it is clear tbat there was *212no sale to Hudson by plaintiff. Hudson was to do two things: He was to cut the ties and pay for them, and when these things were both done, and not till then, the sale was to be consummated and Hudson was to be vested with the title and possession. The ties were not sold to Hudson and delivered to him upon condition that if not paid for the plaintiff could retake them. Bullock could acquire no title when Hudson himself had not acquired any, and could not do so under his agreement, until the ties were paid for.

It is probably more than a coincidence that deducting the cash payment ($95) which Bullock made to Hudson, the balance due by Bullock on the ties is $65, almost the exact amount due plaintiff for the ties.

No error.