#### GENERAL MOTORS ACCEPTANCE CORPORATION v. GEORGE WAUGH and G. A. BROWN.

(Filed 28 January, 1935.)

1. Claim and Delivery A a—

An action in claim and delivery, being for tbe possession of property, must be brought against tbe party in possession. N. O. Code, 830, 831 (2), 834, 836.

2. Same—

Upon tbe findings of fact by tbe court under agreement of tbe parties defendant is held, estopped to deny tbat tbe property, tbe subject of tbe action in claim and delivery, was in possession of defendant at tbe time of tbe institution of tbe action.

3. Appeal and Error E g—

Tbe record imports verity, and tbe Supreme Court is bound thereby.

Appeal by plaintiff from Alley, J., 7 September, 1934. From Gttil-eoed.

Eeversed.

Tbis action was commenced and tried in tbe municipal court of tbe city of High Point. Tbe judgment of tbat court is as follows: “Tbis matter coming on to be beard, it was agreed by tbe parties tbat tbe same should be beard by tbe court without a jury, and tbe same having been called, tbe plaintiff offered tbe following evidence: George Waugh testified tbat on or about 27 June, 1931, tbat be lived in tbe city of Amarilla, Texas, and was tbe owner of one Chevrolet coach, tbe property described in tbe pleadings herein; tbat be purchased tbe same from tbe Plains Chevrolet Company, and gave them a conditional sales contract, and tbat tbe said contract was assigned to tbe plaintiff, and tbat it is now tbe owner of tbe same.

*718“The plaintiff introduced the sales contract, which is not recorded, and the defendant G. A. Brown objected to the introduction of the same for the reason that the same was not recorded. The plaintiff contended that the contract was a Texas contract, and that there was no evidence that the same was required to be recorded in the State of Texas, and the same was admitted.

“The witness "Waugh further testified that after purchasing the said car in Texas, and executing the said conditional sales contract, which is now in the possession of the plaintiff, that he brought the said car to North Carolina, and that the same was stored in the garage of Jettie Garland, and that he had never sold the same, or authorized anyone to take possession of it.

“On cross-examination, he denied that he had any dealings with G. D. Quattlebaum, and that he was now the owner of the said car herein in question. It is found as a fact that this is a claim and delivery action, and that the defendant G. A. Brown file herein a replevy bond and retain the possession of the car herein. The defendant offered in evidence a title to the car in question to Mrs. G. B. Barnhart, of High Point, North Carolina. The defendant moved, at the conclusion of the plaintiff’s evidence, for judgment of nonsuit, which was refused, and the defendant Brown excepted.

“From the foregoing evidence the court finds as facts that the defendant "Waugh purchased the car in question in the State of Texas, and executed and delivered to the Plains Chevrolet Company of Texas a conditional sales contract, of which the plaintiff is now the owner, and that the same is a lien on the automobile herein in question, and that the plaintiff is entitled to the possession of the same.

“Now, therefore, upon the foregoing findings of facts and upon motion of "Walser & Casey, attorneys for the plaintiff, it is ordered and adjudged that the plaintiff recover of the defendant G. A. Brown one Chevrolet coach, Motor No. 1990349, Serial No. 5AD3023; and that the case be retained on docket to ascertain any amount which may he due the plaintiff on account of the retention of this car from the time of the filing of the replevy bond having been filed and the taking of the same under this judgment. This 2 May, 1934. Lewis E. Teague, Judge Municipal Court.”.

The defendant’s exceptions and assignments of error are as follows: “(1) The municipal court erred in allowing the plaintiff to introduce in evidence the conditional sales contract, marked 'Plaintiff’s Exhibit No. 1.’ (2) The municipal court erred in overruling defendant’s motion for judgment as of nonsuit, at the close of the plaintiff’s evidence. (3) The municipal court erred in overruling defendant’s motion for judgment of nonsuit at the close of all the evidence. (4) The municipal court-erred in signing the judgment as appears in the record.”

*719Tbe appeal was beard before Judge Felix Alley, in tbe Superior Court of Guilford County, and tbe following judgment rendered: “Tbis cause coming on to be beard, and being beard before bis Honor, Felix E. Alley, judge presiding in tbe Twelfth Judicial District, upon appeal of tbe defendant G. A. Brown from tbe judgment of tbe municipal court of tbe city of High Point, and tbe case on appeal baying been presented, and tbe matter baying been argued by counsel, and after argument and due consideration, tbe court rules as follows upon tbe defendant’s (appellant’s) exceptions and assignments of error: First, tbat Exception No. 1 be overruled. Second, tbat Exception No. 2 be sustained. Three, tbat Exception No. 3 be sustained, and tbat, therefore, Exception No. 4 should be sustained. Now, therefore, it is ordered, adjudged, and decreed tbat tbe judgment of tbe municipal court of tbe city of High Point in said cause be and tbe same is hereby reversed; and it is further ordered tbat tbis cause be remanded to said court and judgment of non-suit entered therein. Tbis Friday, 7 September, 1934. Felix Alley, Judge presiding.”

Tbe sole exception and assignment of error of plaintiff appellant is to tbe judgment of tbe Superior Court reversing tbe municipal court by nonsuiting tbe plaintiff.

Walser & Casey for ■plaintiff.

D. C. MacRae and Dalton & Pickens for defendant Q. A. Brown.

Pee Oueiam.

N. C. Code, 1931 (Michie), sec. 830, is as follows: “The plaintiff in an action to recover tbe possession of personal property may, at tbe time of issuing tbe summons or at any time before answer, claim tbe immediate delivery of tbe property, as provided in tbis article.”

An action for tbe possession of property must be brought against tbe party in possession. Houghton v. Newberry, 69 N. C., 456; Webb v. Taylor, 80 N. C., 305; Moore v. Brady, 125 N. C., 35 (37). Claim and delivery is not maintainable against one who has neither possession nor control of tbe property sought to be recovered, but who has sold and delivered it to another party. Webb v. Taylor, 80 N. C., 305.

Tbe affidavit and requisites of claim and delivery are set forth in section 831 (2), which is as follows: “Where a delivery is claimed; an affidavit must be made before tbe clerk of tbe court in which tbe action is required to be tried or before some person competent to administer oaths, by tbe plaintiff, or someone in bis behalf, showing — (2) tbat tbe property is wrongfully detained by tbe defendant.”

Section 834 is as follows: “Upon tbe receipt of tbe order from the clerk with tbe plaintiff’s undertaking tbe sheriff shall forthwith take tbe *720property described in tbe affidavit, if it is in tbe possession of tbe defendant or bis agent, and retain it in bis custody. He shall also, without delay, serve on tbe defendant a copy of tbe affidavit, notice, and undertaking, by delivering tbe same to him personally, if be can be found, or to bis agent, from whose possession tbe property is taken; or, if neither can be found, by leaving them at tbe usual place of abode of either, with some person of suitable age and discretion.”

Section 836 is as follows: “At any time before tbe delivery of tbe property to tbe plaintiff, tbe defendant may, if be does not except to tbe sureties of tbe plaintiff, require tbe return thereof, upon giving to tbe sheriff a written undertaking, payable to tbe plaintiff, executed by one or more sufficient sureties, to tbe effect that they are bound in double tbe value of tbe property, as stated in tbe affidavit of tbe plaintiff, for tbe delivery thereof to tbe plaintiff, with damages for its deterioration and detention, and tbe costs, if delivery can be bad, and if delivery cannot be bad, for tbe payment to him of such sum as may be recovered against tbe defendant for tbe value of tbe property at tbe time of tbe wrongful taking or detention, with interest thereon, as damages for such taking and detention, together with tbe costs of tbe action. If a return of tbe property is not so required, within three days after tbe taking and service of notice to tbe defendant, it must be delivered to tbe plaintiff, unless it is claimed by an interpleader. Tbe defendant’s undertaking shall include liability for costs, as provided in this section, only where tbe undertaking is given in actions instituted in tbe Superior Court.”

C. S., 840, sets forth proceeding when property is claimed by a third person. On tbe argument of this case, we were under tbe impression that tbe nonsuit in tbe court below was correct. Tbe defendant in bis brief says: “Therefore, possession not having been shown in tbe defendant Brown at any time, and it positively appearing that other named persons actually bad possession, nonsuit should have been entered as to him. Hence, tbe Superior Court’s reversal of tbe municipal court of High Point should be affirmed.”

We are bound by tbe record here, it imports verity. It appears in tbe judgment in tbe municipal court “it was agreed by tbe parties that tbe same should be beard by tbe court without a jury.” It further appears: “It is found as a fact that this is a claim and delivery action, and that tbe defendant Gr. A. Brown file herein a replevy bond and retain tbe possession of tbe car herein.”

Under this finding of fact, it is presumed that tbe parties complied with tbe law above set forth, that tbe sheriff took tbe property which was in tbe possession of tbe defendant Brown, C. S., 834, and tbe defendant Brown gave tbe undertaking, as required by C. S., 836.

*721It is well settled that the record in regard to these matters cannot be considered in evidence unless admitted or introduced on the trial. In the findings of facts in this case by the municipal court, we think that the defendant Brown is estopped to make the contentions that the property, when seized, was not in his possession.

Mrs. G. B. Barnhart did not interplead, as she had a right to do under C. S., 840, supra.

For the reasons given, the judgment must be

Eeversed.