Sheffield v. Walker

58 S.E.2d 356 (1950)

231 N.C. 556

SHEFFIELD et al. v. WALKER et al.

No. 234.

Supreme Court of North Carolina.

March 22, 1950.

*358 R. D. Johnson, Warsaw, and J. Faison Thomson, Goldsboro, for the plaintiff, appellees.

James N. Smith, Goldsboro, for the defendant, the Shepherd Company, appellant.

ERVIN, Justice.

Chattel mortgages and conditional sales are nearly allied to each other. Poindexter v. McCannon, 16 N.C. 373, 18 Am.Dec. 591. For this reason, G.S. § 47-20, which covers Chattel Mortgages, and G.S. § 47-23, which embraces conditional sales, prescribe identical requirements for their recording. These statutes provide that a chattel mortgage or a conditional sale of *359 tangible personal property is valid as against creditors or purchasers for a valuable consideration from the mortgagor or vendee only from and after its registration in the county where the mortgagor or vendee resides if he resides in the State, or in the county where the property is situated if he resides out of the State.

Since there is no allegation and proof that the Ford truck was situated in Duplin County at the determinative time, the primary question raised by this appeal is simply this: Was the testimony presented by the plaintiffs at the trial sufficient to sustain the proposition that Walker resided in Duplin County when the conditional sale was registered, i. e., on September 11, 1947?

It was well said by the late Justice Oliver Wendell Holmes that "a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used." Towne v. Eisner, 245 U.S. 418, 38 S. Ct. 158, 159, 62 L. Ed. 372, L.R.A.1918D, 254. This aphorism finds abundant exemplification in the word "residence," which has many shades of meaning, ranging all the way from mere temporary presence to the most permanent abode. 17 Am.Jur., Domicil, section 9.

"Residence" is sometimes synonymous with "domicile." But when these words are accurately and precisely used, they are not convertible terms. Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307. "Residence" simply indicates a person's actual place of abode, whether permanent or temporary; "domicile" denotes a person's permanent dwelling-place, to which, when absent, he has the intention of returning. Owens v. Chaplin, 228 N.C. 705, 47 S.E.2d 12; Roanoke Rapids v. Patterson, 184 N.C. 135, 113 S.E. 603. Hence, a person may have his residence in one place, and his domicile in another. Wheeler v. Cobb, 75 N.C. 21.

When due heed is paid to both the legislative purpose and the context, the meaning of the statutory requirement under scutiny becomes plain. G.S. § 47-20 and G.S. § 47-23 are designed to give notice of chattel mortgages and conditional sales to third persons; and the requirement that such instruments are to be registered in the county where the maker resides is based on the legislative realization that "persons interested to have knowledge in such respect would go to the county where a person resides to see what disposition he had made of his personal property by deeds and other instruments required to be registered". Bank of Colerain v. Cox, 171 N.C. 76, 87 S.E. 967, 968.

Manifestly, the recordation of a chattel mortgage or a conditional sale at the domicile of the maker would not be likely to give notice to third persons unless the place of his domicile and the place of his actual abode happen to coincide. Moreover, the end in view could not be attained by permitting registration in a place when the maker is physically present in the character of a mere transient. It thus appears that under these statutes "residence" means something more than a mere physical presence in a place, and something less than a domicile. The term clearly imports a fixed abode for the time being. For these reasons, it has been established by well considered decisions that G.S. § 47-20 and G.S. § 47-23 require a chattel mortgage or conditional sales contract executed by a resident mortgagor or vendee to be recorded in the county where he has his actual personal residence. Industrial Discount Corporation v. Radecky, 205 N.C. 163, 170 S.E. 640; Bank of Colerain v. Cox, supra; Weaver v. Chunn, 99 N.C. 431, 6 S.E. 370.

These things being true, it is manifest that the testimony adduced by the plaintiffs at the trial was sufficient to warrant a finding that the defendant Walker had his actual personal residence in Duplin County at the time of the registration of the conditional sales contract. Consequently the court below rightly refused to dismiss the action upon a compulsory nonsuit.

*360 The exceptions to the charge present no novel questions and are without substantial merit.

The trial and judgment are sustained; for there is in law

No error.