#### HOME FINANCE COMPANY OF GEORGETOWN, INC., v. W. H. (BILL) O’DANIEL and H. W. KENNEDY.

(Filed 4 March, 1953.)

1. Chattel Mortgages and Conditional Sales § 8b — Whether mortgaged vehicle acquired situs in this State within meaning of G.S. 44-38.1 (a) held question for jury upon the evidence and agreed facts.

An automobile subject to a chattel mortgage, executed in another state and duly registered in such other state in accordance with its laws, was brought into this State after the effective date of G.S. 44-38.1. The evidence and facts agreed disclose that the mortgagor sold it to a used car dealer in this State who, after keeping the truck some eight weeks, sold it to an innocent purchaser for value without notice, and that mortgagee repossessed it some fifteen days later. Held,: Under the provisions of G.S. 44-38.1 (a) the vehicle acquired a prima facie situs in this State, but such prima facie case does not compel a finding by the jury to this effect, and therefore defendant purchaser is not entitled to a nonsuit, the burden being upon him to prove a change of situs alleged by him, but a directed verdict in the mortgagee’s favor is error, the issue being for the determination of the jury upon the evidence and facts agreed.

3. Trial § 33b—

Prima facie evidence simply carries the case to the jury for its determination, and justifies but does not compel a finding by the jury in accordance therewith.

3. Trial § 39—

A peremptory instruction in favor of plaintiff is proper only when the facts, admitted and established, are susceptible only to one inference, and when different inferences can be drawn therefrom a peremptory instruction is error.

Appeal by defendant H. W. Kennedy from Pless, J., and a jury, at April Civil Term, 1952, of Guilfohd (Greensboro Division).

Civil action in claim and delivery for the possession of an automobile, claimed under a conditional sales agreement executed in the State of South Carolina.

The plaintiff and the defendant Kennedy entered into a stipulation, which was introduced in evidence during the trial, and may be summarized as follows: 1. The plaintiff is a corporation duly organized and existing under the laws of the State of South Carolina with its principal office in Georgetown, South Carolina, with associate offices in Greensboro, North Carolina. 2. Kennedy is a resident of Guilford County, North Carolina. 3. On 11 June, 1951, W. F. Blake executed and delivered a conditional sales agreement, or chattel mortgage, to Harrelson Motors, Inc., Georgetown, South Carolina, conveying to the motor company one 1951 GMO pick-up automobile truck, as described in the com*287plaint, as security for a promissory note of even date in tbe sum of $1,405.08 executed and delivered by Blake on tbe same date to tbe motor company. Tbe note was payable in 18 monthly installments — tbe first installment being due on 11 July, 1951. At tbe time of tbe execution and delivery of tbe note and conditional sales contract, Blake gave bis residence as Little River, Horry County, South Carolina. 4. On 11 June, 1951, for a valuable consideration, tbe motor company sold and assigned tbe contract and note of Blake to tbe plaintiff. 5. Tbe plaintiff duly recorded tbe conditional sales contract in tbe office of tbe Clerk of tbe Court of Horry County, South Carolina, on 12 June, 1951, as provided by tbe laws of tbe State of South Carolina. Blake has failed to comply with tbe terms of the conditional sale contract and promissory note, and has failed to make payments in accordance with tbe terms of said contract and note. There is now due plaintiff on said note and contract $1,232.19 after credit for rebate on insurance and interest. 6. Tbe truck bad a reasonable market value of $1,400.00 on 11 June, 1951. 7. Blake subsequent to tbe recordation of tbe sales contract brought tbe truck into North Carolina, and on or about 10 July, 1951, sold tbe truck for a valuable consideration to tbe defendant Kennedy, a used car dealer, in Guil-ford County, North Carolina; at tbe time of tbe sale Blake transferred to Kennedy a South Carolina registration card showing registration of tbe truck in tbe name of Blake with tbe State Highway Department, Motor Yebicle Division, Columbia, South Carolina; that tbe registration of tbe truck still remains in tbe name of Blake according to tbe records of tbe State of South Carolina. 8. On 3 September, 1951, Kennedy sold tbe truck to tbe defendant O’Daniel, who was an innocent purchaser for valuable consideration; the truck has remained in North Carolina since 10 July, 1951. Tbe plaintiff first bad knowledge that tbe truck was brought into North Carolina on 4 September, 1951. Upon receipt of this information that tbe truck was in Guilford County, North Carolina, tbe plaintiff contacted its associate company in Greensboro, and gave it this information. On 5 September, 1951, one Paschal, agent of tbe plaintiff, went to Kennedy’s used car lot, and talked to Kennedy’s son concerning said truck, informing Kennedy’s son that plaintiff held a mortgage on said truck. 9. On 17 September, 1951, plaintiff instituted in tbe Civil Division of the Municipal County Court of Greensboro, North Carolina, claim and delivery proceedings against O’Daniel, and took said truck from tbe possession of O’Daniel on 18 September, 1951. On 20, September, 1951, Kennedy returned to tbe defendant O’Daniel $1,100.00, representing tbe consideration paid by O’Daniel to Kennedy for tbe truck, and O’Daniel assigned to Kennedy all rights be bad in tbe truck. 10. On 5 October, 1951, Kennedy interpleaded — an order making him a party defendant being signed by tbe judge of tbe Municipal County *288Court on. 5 October, 1951; and Kennedy filed his answer in said court on 9 October, 1951. The defendant O’Daniel filed no answer or pleading and does not appeal. 11. At the time of the seizure of said truck by claim and delivery by the plaintiff from O’Daniel, it had a reasonable market value of $1,200.00. 12. The plaintiff had its sales contract recorded in the office of the Register of Deeds of Guilford County, North Carolina on 26 November, 1951. 13. Each party reserved the right to introduce evidence not in contradiction to the above stipulations. The above stipulations were entered into on 18 April, 1952, in the Superior Court of Guil-ford County. In the trial in the Municipal County Court there was a judgment signed in favor of the defendant Kennedy, and the plaintiff appealed to the Superior Court.

The plaintiff introduced one witness, J. R. Brown, whose testimony, excluding all parts of it covered in the stipulations, may be summarized as follows: Brown testified that he had a conversation with Kennedy in his Greensboro office 6 September, 1951, in respect to this truck — Brown being an employee of the plaintiff’s associate company in Greensboro. He told Kennedy that the plaintiff had a mortgage in the Georgetown office on the truck, and that Blake, who sold him that truck, had been a “skip,” and we were looking for him; and asked that Kennedy pay off the mortgage or give the truck to the plaintiff. Kennedy said: “He guessed he’d have to pay it off, to use his exact words. He asked that I call, and get the amount of the balance, which I did, and gave him the figure.” Kennedy told Brown that he had checked with the Department of Motor Vehicles or the State Highway Department of South Carolina; that was the only place he checked, and did not make inquiry at Little River, Horry County, South Carolina. The plaintiff has the truck in its possession now under claim and delivery proceeding. As far as I can recollect, the registration card was in Kennedy’s possession. The plaintiff introduced a registration card in evidence on this truck with the name on it— W. F. Blake, Little River, Horry County, South Carolina. The plaintiff never knew that Blake lived anywhere else except Horry County, South Carolina. I do not know where Blake is now. I do not know whether Blake ever established a residence in Guilford County. The registration card has never been registered in O’Daniel’s name.

The defendant Kennedy then offered evidence — his only witness being himself — whose testimony, except the part as covered in the stipulations, is summarized as follows: I bought this truck directly from Blake; I saw he wanted to sell it. I wanted to be sure it was paid for. I said to Blake: “Let’s see the stuff you’ve got, all the papers and everything.” Blake showed me a card. I told him before I bought it, I would have to check the title. I called the Motor Club, State Highway in Columbia, South Carolina, to see if it was Blake’s truck. They said it was. Blake *289told me be owed nothing on tbe truck. He gave me a bill of sale, also tbe card and papers. Kennedy introduced in evidence tbe registration card given to bim by Blake, wbieb bad on it W. F. Blake, Little River, Horry County, South Carolina. I bought tbe truck for tbe purpose of sale. I gave Blake $625.00 and a 1939 Ford for tbe truck. Tbe reasonable market value of tbe Ford was $375.00. “I only told Mr. Brown I would take care of tbe lien only if be would guarantee I wouldn’t have to pay somebody else.” Brown said he was only interested in bis money. On cross-examination Kennedy testified: “I purchase cars for tbe purpose of selling them to anybody who might want to buy them, whether they live in North Carolina or not. When I purchased this truck from Blake,. I retained it under tbe registration card Blake gave me. When I purchased tbe truck back from O’Daniel, I took back tbe same registration title in tbe name of W. F. Blake, registered in South Carolina. Tbe title is still registered in South Carolina, and never has been registered in North Carolina. A dealer can keep them .that way a year. I do not know where Blake is now. I never saw bim before this purchase. I have not tried to locate bim. I made no inquiry in Horry County, South Carolina, as to whether there was a mortgage against tbe truck.”

Tbe court submitted one issue to tbe jury, which was answered as follows, to wit: Is tbe plaintiff entitled to tbe possession of tbe 1951 GMC truck, motor number [ AXXXXXXXXX ], serial number P16451, for tbe purpose of foreclosing its lien thereon? Answer: Yes.

Tbe court signed a judgment for tbe plaintiff in accordance with tbe jury’s verdict and tbe defendant Kennedy appealed to tbe Supreme Court.

Adam Younce for plaintiff, appellee.

J. D. Franks, Jr., for H. W. Kennedy, defendant, appellant.

Parker, J.

Tbe defendant Kennedy assigns as bis Error No. One tbe refusal of tbe court to nonsuit tbe plaintiff at tbe close of tbe plaintiff’s evidence, and assigns as bis Error No. Two tbe refusal of tbe court to nonsuit tbe plaintiff at tbe close of all tbe evidence. Kennedy in bis brief states: “G.S. 44-38.1 applied to tbe entire transaction in controversy and tbe motions for judgment as of nonsuit should have been allowed.” He further states in bis brief “if for any reason G.S. 44-38.1 should be held inapplicable to tbe instant case because of tbe effective date of tbe statute, it is respectfully submitted that G.S. 47-20 and G.S. 47-23 would be controlling.”

G.S. 44-38.1 became effective 1 July, 1951, and did not apply to pending litigation. Tbe truck was sold by Blake to Kennedy 10 July, 1951, and this action was instituted 17 September, 1951. G:S. 44-38.1 was in full force and effect, when Blake sold tbe truck to Kennedy. Whether Sub-*290secs. (1) and (2) of G.S. 44-38.1 apply depends upon the question as to whether the truck has acquired a situs in North Carolina. Kennedy in paragraph two of his further answer and defense alleges the truck was brought into North Carolina with the intent that it be permanently located in this State, and has been in North Carolina for more than two months next preceding the commencement of this action, and that the truck had acquired a situs in North Carolina. The defendant Kennedy haying alleged in his answer a change of situs of this truck, he has the burden to establish it. 78 C.J.S., Sales, p. 305.

Webster’s New International Dictionary defines situs as follows: “Situation or location; position; locality.” This Court in Credit Corp. v. Walters, 230 N.C. 443, p. 446, 53 S.E. 2d 520, says “situated” as used in G.S. 47-20 and 47-23 “means haying a site, situation or location; permanently fixed; located . . . ‘It connotes a more or less permanent location or situs, and the requirement of permanency must attach before tangible personalty which has been removed from the domicil of the owner will attain a situs elsewhere.’ ” See also Montague v. Shepherd Co., 231 N.C. 551, 58 S.E. 2d 118, for a definition of “situated” as used in the same statutes. The word "situs” as used in G.S. 44-38.1 and the word “situated” as used in G.S. 47-20 and 47-23 have the same meaning.

Automobiles, unlike land, have no permanent location in one place. Their use and value depend on their mobility, and for that reason unprincipled people have frequent opportunities to cheat and defraud innocent third persons. To protect persons in this State who purchase for a valuable consideration personal property, covered by a chattel mortgage or a conditional sale agreement created in another state, when the property has been brought into this State from another state G.S. 44-38.1 was enacted by the Legislature. The first sentence of Sub-sec. (a) of the statute provides that “personal property acquires a situs in this State when it is brought into this State with the intent that it be permanently located in the State.” Such intent is often difficult, if not impossible, to establish so as to make out a case for the jury. In order to facilitate the making out of a case for the jury, the second sentence of Sub-sec. (a) was enacted, which reads: “The keeping of personal property in this State for two consecutive months is prima facie evidence that such property has acquired a situs in this State.”

It is agreed in the stipulations between the plaintiff and Kennedy that Blake brought the truck into North Carolina on or about 10 July, 1951, and sold it to Kennedy. On 3 September, 1951, Kennedy sold the truck to O’Daniel, and on 18 September, 1951, the plaintiff seized the truck under claim and delivery from O’Daniel. The truck has been in North Carolina since 10 July, 1951. This agreement in the stipulations of the keeping of the truck in North Carolina for two consecutive months is *291 prima facie evidence tbat such property has acquired a situs in this State.

Such prima facie evidence means, and means no more, than evidence sufficient to justify, but not to compel, an inference that the truck has acquired a situs in North Carolina if the jury so find. It furnishes evidence to be weighed, but not necessarily to be accepted, by the jury. It simply carries the case to the jury for determination, and no more. McDaniel v. R. R., 190 N.C. 474, 130 S.E. 208; Mfg. Co. v. R. R., 222 N.C. 330, 23 S.E. 2d 32; Bennett v. R. R., 232 N.C 144, 59 S.E. 2d 598.

From the evidence an inference can be drawn that the truck has not acquired a situs in North Carolina. The keeping of the truck in North Carolina for two consecutive months is prima facie evidence that the truck has acquired a situs in this State. That presents an issue of fact for a jury. The defendant Kennedy’s Assignments of Errors Nos. One and Two as to the refusal of the court to nonsuit the plaintiff are overruled.

The defendant Kennedy assigns as Errors Nos. Three and Four the peremptory charge of the court to the jury that if they believed all the evidence, they should answer the issue Yes. A peremptory instruction to a jury is proper when the facts are admitted or established, and only one inference can be drawn therefrom. La Vecchia v. Land Bank, 218 N.C. 35, 9 S.E. 2d 489; Morris v. Tate, 230 N.C. 29, 51 S.E. 2d 892. As different inferences can be drawn from the evidence, it was prejudicial error for the court to give a peremptory charge, and the defendant Kennedy’s Assignments of Errors Nos. Three and Four are sustained.

G.S. 44-38.1, Sub-sec. (b), applies to this truck if a situs has been acquired; Sub-sec. (c) applies if the truck has acquired no situs; Sub-sec. (d) does not apply for it is agreed that the encumbrance on the truck “was duly recorded in the office of the Clerk of Court of Horry County, South Carolina, on 12 June, 1951, at 9 :37 o’clock a.m., as provided by the laws of the State of South Carolina.”

The defendant Kennedy is entitled to a new trial, and it is so ordered.

New trial.