#### J. B. CAHOON v. D. O. BRINKLEY.

(Filed 17 February, 1914.)

1. Trials — Nonsuit—Motion Before Verdict.

Where no counterclaim is pleaded or proved the plaintiff may take a voluntary nonsuit at any time before verdict rendered.

2. Trials — Nonsuit — Counterclaim Pleadings — Notes—Payment—Chattel Mortgage.

In an action upon a note with chattel mortgage security, where payment of the note is alleged in defense, the effect of the allegation of payment is not one setting up a counterclaim, or raising an issue thereof, the payment of the note automatically canceling the mortgage security, and plaintiff’s motion for voluntary nonsuit should be granted when made'in time.

Appeal by plaintiff from Bond, J., at August Term, 1914, of 'WASHINGTON.

Civil action, tried upon these issues:

1. Did tbe Plymouth Brick and Tile Manufacturing Company own the property described in complaint when the note and paper for $325 was given to A. L. Owens? Answer: “No.”

2. Has the $325 note given to A. L. Owens been paid or discharged? Answer:_

3. Did the plaintiff and E. P. Oahoon fraudulently conspire together to hold said Owens’ note and purported mortgage as the property of J. B. Oahoon, after it had been paid or discharged, to defeat the claim of D. 0. Brinkley ? Answer:_

4. Was the property described in said paper made to A. 1. Owens-worth, when D. O. Brinkley sold it, as much as the amount of said Owens’ note and interest on it? Answer: “Yes.”

5. Was the paper-writing made to A. L. Owens by said Plymouth Brick and Tile Manufacturing Company so executed, probated, and registered as to make it a valid lien on the property, if said manufacturing company owned the property at time such paper was given? Answer : “No.”

6. What sum, if anything, is plaintiff entitled to recover of defendant, D. O. Brinkley? Answer: “Nothing.”

The plaintiff appealed.

Gaylord & Gaylord for the plaintiff.

Ward & Grimes, W. M. Bond, Jr., for the defendant.

Beown, J.

The first assignment of error is because the court refused to allow the plaintiff to submit to a voluntary nonsuit. The facts are as follows: The jury retired to the jury room about 5 :30 p. m. and stayed *258out until about 9 p. m. They were tben called into tbe jury box in presence o£ counsel for botb sides, about 9 p. m., and wben called in were asked by tbe court if they bad agreed on tbe first three issues, and they answered “No.” Tbe court tben asked if they tbougbt by staying together in tbe jury room a few minutes longer tbey could agree on any one of the three. One juror replied be tbougbt tbey all bad agreed, or could agree, on tbe first issue. Tbe court told them to go to their room and write tbe answer to tbe first issue if tbey bad agreed or could agree. Tbey started toward tbe jury room and tbe counsel for tbe plaintiff arose and said tbe plaintiff would take a nonsuit. Defendant objected, and further stated that tbey bad pleaded a counterclaim and demand for affirmative relief, that tbe plaintiff’s .claim, etc., be canceled, and tbe court said it would deny right to nonsuit under tbe circumstances, and tbe plaintiff excepted.

We think this was error. Tbe answer of tbe defendant, as we read it, sets up practically a plea of payment, which if found in favor of tbe defendant automatically cancels tbe note and tbe security. We have not been cited to any statutory provision which authorizes or requires tbe cancellation of chattel mortgages on record, as is provided in the case of mortgages upon real estate. Even if there is such a provision, when tbe debt is decreed by the judgment of tbe court to be paid, tbe security for tbe debt is automatically discharged and released. Besides, there was no issue tendered by tbe defendant or submitted to tbe jury based upon any counterclaim.

Tbe plaintiff bad a right to submit to a judgment of nonsuit, inasmuch as no verdict bad been rendered. It is to be noted that tbe jury in this -case bad not agreed on any one issue, and no verdict bad been rendered on either issue. Under such circumstances it is well settled, in tbe absence 'of a properly pleaded counterclaim, that tbe plaintiff bad a right to submit to a nonsuit and go out of court. Straus v. Sawyer, 133 N. C., 64; Sharpe v. Sowers, 152 N. C., 379.

Tbe judgment of tbe Superior Court is reversed and tbe cause is remanded with instructions to enter a judgment of nonsuit.

Reversed.