#### LESTER PIANO COMPANY v. MRS. MARY LOVEN.

(Filed 10 October, 1934.)

Limitation of Actions A c — Three-year statute applies to claim and delivery for chattel covered hy conditional sale contract not under seal.

Defendant had possession of a chattel purchased by her under a promissory note and conditional sale contract not under seal. Plaintiff, the owner of the conditional sale contract, instituted claim and delivery proceedings for the possession of the chattel for sale under the terms of the contract. Defendant pleaded the three-year statute of limitations, and *97plaintiff admitted that there had been no new promise or payment on the purchase price for over three years prior to the institution of the action: Beld, the three-year statute of limitations, O. S., 441 (1), (4), barred the ancillary remedy of claim and delivery, 0. S., 830, action on the note being also barred by the statute.

Appeal by plaintiff from Warliclc, J., at April Term, 1934, of Avery.

Affirmed.

Tbe judgment of tbe court below is as follows: “It is agreed tbat tbe plaintiff is a corporation organized and existing under and by virtue of tbe laws of tbe State of Pennsylvania, and tbat tbe defendant is a resident of Avery County. It is agreed tbat tbe plaintiff is tbe owner and bolder of tbe conditional sales and retention title contract to tbe piano described in tbe complaint, wbicb is in words and figures as follows:

“$295.00. Hickory, N. C., 4-2-1926. For value received, I, tbe undersigned, of No. Street, town of Newland, county of Avery, State of North Carolina, promise to pay to tbe order of Jno. F. Warren Music Company, of Hickory, N. 0., two hundred and ninety-five dollars at its office in Hickory, N. C., as follows: Ten dollars this date and ten dollars per mo, until paid, with interest on each of said sums at tbe rate of six per centum from date hereof until paid, with exchange. Tbe consideration for tbe payment of tbe above named amounts is tbe delivery by said Jno. F. Warren Music Company to tbe undersigned of one piano made by Lester Company, No. 87317, Style Mali 40. It is expressly agreed by and between the said Jno. F. Warren Music Company and the undersigned tbat tbe title to said instrument shall remain in tbe Jno. F. Warren Music Company until tbe entire purchase price, with interest, is fully paid; but tbe undersigned hereby assumes all liability for said instrument in tbe event of its being destroyed or damaged, reasonable use and wear thereof excepted; and if tbe undersigned shall fail to make any of tbe aforesaid payments within thirty days after such payments respectively fall due, said Jno. F. Warren Music Company may at its option, with or without notice to tbe undersigned, declare all unpaid installments immediately due and payable and shall have tbe right to retake said instrument. In case Jno. F. Warren Music Company shall retake possession of said instrument, all moneys paid on tbe purchase price thereof shall belong to Jno. F. Warren Music Company as liquidated damages, for tbe nonfulfillment of this contract, loss in value of said instrument, and for tbe use or rental of said instrument while remaining in possession of tbe undersigned. In case of legal proceedings, tbe undersigned agrees to pay such costs as may accrue.

“Tbe undersigned agrees not to move tbe instrument herein described without tbe consent of Jno. F. Warren Music Company, also to have it *98insured and pay the loss, if any, to Jno. E. 'Warren Music Company, as its interest may appear; also to pay any taxes levied against the same while in his possession. Mrs. Mary Loven (Signed). Witness: W. II. Yoder.

“It is agreed that under said conditional sale agreement or contract the plaintiff made demand for possession of the piano, and the demand was refused, and claim and delivery issued with proper bond on the part of the plaintiff was issued, and that a proper replevy bond was given by the defendant. The value of the property is admitted to be $150.00.

“It is agreed by the plaintiff that no payment has been made by the defendant to the plaintiff within the past three years, and that for three years or more prior to the institution of the action the defendant paid no amount of said contract.

“Upon the agreement of the facts above stated, the court is asked to pass upon only the question of whether or not the plea of the statute of limitations made by the defendant in her answer, and admitted by the plaintiff in the findings of fact, is good as a bar, it being admitted that it is properly pleaded, to- the maintenance of this suit or action at law by the plaintiff, and that the said statute of limitations is the sole question to be passed on by the court, the parties waiving a jury trial, and agreeing that in the event the court is of the opinion that the plea of the statute of limitations is good, that the court would then, if there had been a jury trial, or if the jury had been impaneled, peremptorily instructed the jury that as a matter of law that they would answer any issue submitted to the jury as to the plea of the statute of limitations in favor of the defendant.

“The court thereupon holds, on the admission being made that no payment has been made within three years or more by the defendant to the plaintiff or anyone for the plaintiff, within three years or more prior to the institution of the action, that the plea of the statute of limitations would prevail, and so stating to the parties authorizes the drafting of a judgment to the effect that the defendant is not indebted to the plaintiff under her plea of the statute of limitations, and not being indebted to the plaintiff, that the plaintiff would not be entitled to the property for the purpose of exposing it to sale under the statute applicable to the sale of the property under conditional sales contract for the purpose of satisfying the amount due thereon. And from the foregoing judgment and signing thereof the plaintiff in open court gives notice of appeal to the Supreme Court. Further notice waived.

“By consent, the plaintiff appellant is allowed forty days to make up and serve statement of case on appeal, and the defendant appellee is allowed thirty days thereafter to serve counterease or file exceptions. Appeal bond in the sum of $50.00 adjudged sufficient. (Signed) Wilson War lick, Judge Presiding.”

*99Tbe exceptions and assignments of error made' by plaintiff are as follows: “First. To the action of tbe court in bolding tbat tbe statute of limitations pleaded by tbe defendant in ber answer is applicable to tbis action and bars tbe plaintiff from recovering tbe possession of tbe property in question.

“Second. To tbe action of tbe court in signing and entering tbe judgment appearing in tbe record.”

J. V. Bowers for plaintiff.

Charles Hughes for defendant.

OlaeicsoN, J.

Is tbe plaintiff, under tbe above facts in tbis claim and delivery proceeding, barred by tbe tbree-year statute of limitation? We tbink so.

N. C. Code, 1931 (Michie), sec. 441 (1) and (4), are as follows: “Witbin three years an action — (1) Upon a contract, obligation or liability arising out of a contract, express or implied, except those mentioned in tbe preceding sections. . . . (4) For taking, detaining, converting or injuring any goods or chattels, including action for their specific recovery.”

In Battle v. Battle, 116 N. C., 161 (163-164), it is said: “Tbe Code, sec. 172 (C. S., 416), requires an acknowledgment or new promise to be in writing left tbe effect of a partial payment in removing tbe bar of tbe statute of limitations as it was before tbe Code of Civil Procedure. Bank v. Harris, 96 N. C., 118. Tbe effect of partial payment in stopping tbe running of tbe statute is not by virtue of any statutory provision. It was not in tbe statute of James I, but was an exception allowed by tbe courts, and its application depends upon tbe reasoning in such decisions. Tbe Act of 9 George IV, C 14, in a similar way to our statute, merely recognizes tbe exception as existing. Partial payment is allowed tbis effect only when it is made under such circumstances as will warrant tbe'clear inference tbat tbe debtor recognizes tbe debt as then existing and bis willingness, or at least bis obligation, to pay tbe balance.” Nance v. Hulin, 192 N. C., 665. C. S., 416. N. C. Practice and Procedure in Civil Cases (McIntosh), sec. 131.

Tbe contract sued on is not under seal and there is no new promise or partial payment on tbe note. Tbe plaintiff alleges in its complaint of claim and delivery tbe following: “Tbat tbe plaintiff is tbe owner of tbat certain upright piano made by Lester Piano Company, No. 87317, Style Mab 40, by virtue of a conditional sale and retention title contract executed by tbe defendant to tbe title to said piano, of which contract tbe plaintiff is tbe owner thereof.”

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 *100of issuing tbe summons or at any time before, answer, claim tbe immediate delivery of tbe property as provided in tbis article.”

In Wilson v. Hughes, 94 N. C., 182 (185-186), citing numerous authorities, is tbe following: “We observe that tbis is called an 'action of claim and delivery.’ Properly and strictly speaking there is nO‘ such action. The action commonly so-called is an action to recover tbe possession of personal property — some specific chattel — and is of tbe nature of tbe action of detinue under tbe common-law method of procedure. 'Claim and delivery of personal property’ is a provisional remedy, incident and ancillary, but not essential to tbe action. Tbe object of such incidental provision is to enable tbe plaintiff, upon giving an undertaking in double tbe value of tbe property in question, with approved security, as required by tbe statute, to obtain tbe immediate possession of tbe same, unless tbe defendant shall give a similar undertaking and security for its delivery to tbe plaintiff, if it shall be so adjudged, and for tbe payment of such costs as may be adjudged against him in tbe action. Thus, tbe property, or tbe value of it, is made secure pending tbe action, in such way as to answer tbe purpose of tbe final judgment. Tbis provisional remedy is peculiar to tbe Code method of procedure, and gives tbe action something of tbe nature of the action of replevin at tbe common law.

“ 'Claim and delivery’ of tbe property may be omitted, and tbe action may be simply to recover tbe possession of tbe specific chattel, as in detinue, or to recover tbe value of tbe property as in trover or trespass. In any case, it is incident to an action and provisional only.” See Foreclosure of Conditional Sales, sec. 2587. House v. Parker, 181 N. C., 40.

Tbe defendant in her answer pleaded tbe three-year statute of limitations : “That if tbe defendant is due tbe plaintiff any amount whatsoever, which she now denies, it has been a number of years since any demand was made upon her by plaintiff for payment, until at tbe time of or immediately before tbe institution of tbis action, and it has been more than three years since any payment has been made to tbe plaintiff on its alleged account against her, and tbe defendant now pleads tbe three-year statute of limitations as a bar to plaintiff’s right to recover in tbis action.”

We think that section 441 (1) and (4), supra, bars tbe plaintiff’s ancillary claim and delivery proceeding. Tbe present proceeding concerns personal property. N. C. Code, 1931 (Micbie), sec. 437: “Within ten years an action — (2) Upon a sealed instrument against tbe principal thereto. (3) For tbe foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where tbe mortgagor or grantor has been in possession of tbe property, within ten years after tbe *101forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same.”

N. C. Code, 1931 (Michie), sec. 2589, is as follows: “The power of sale of real property contained in any mortgage or deed of trust for the benefit of creditors shall become inoperative, and no person shall execute any such power, when an action to foreclose such mortgage or deed of trust for the benefit of creditors would be barred by the statute of limitations.”

The holding in Menzel v. Hinton, 132 N. C., 660, and in Cone v. Hyatt, 132 N. C., 810, that the power of sale in a deed of trust or mortgage is not barred by the statute of limitations, though an action for foreclosure thereon is barred, is changed by this section, supra. Humphrey v. Stephens, 191 N. C., 101.

For the reasons given, the judgment of the court below is

Affirmed.