
    J. W. WALTER v. B. A. EARNHARDT.
    (Filed 10 May, 1916.)
    1. Claim and Delivery — Jiotes—Equity—Cancellation.
    A maker of a note who has paid it may sue in equity for its cancellation and delivery, and under onr statute, Revisal, sec. 859, he may also maintain claim and delivery if he does not desire to enforce the equity of cancellation.
    
      2. Bills and Jiotes — Payment—Possession—Right of Action.
    The maker of a note who has paid it becomes the owner thereof and is entitled to its possession, as between the immediate parties, and may maintain his action therefor.
    Appeal by defendant from Long, J., at January Term, 1916, of CABARRUS.
    
      H. S. Williams for plaintiff.
    
    
      Maness & Sherrin for defendant.
    
   Clark, C. J.

This was an action begun before a justice of the peace to obtain the possession of a certain note given by the plaintiff to the defendant. The note was originally for $350. Later $200 was credited thereon. There was some dispute between the parties as to the balance due on a settlement of accounts, and the plaintiff testified that the defendant and he made a compromise by which the defendant would take $25 off the note if the plaintiff would pay the balance. They made a calculation, he says, and found that, including the interest, the balance due on the note was $160.15, and thereupon he paid Earnhardt $135.15 in full settlement according to the contract, and Earnhardt said that he would credit the note,, according to the compromise, with the other $25, but that the note was in bank and that he would go there and cancel it. Some two months afterwards the plaintiff met the defendant and asked him for the note, but he refused to give it up.

According to the evidence, the note was originally given for a pair of mules, but later the defendant had sold plaintiff a young horse which did not come up to the warranty, and by the compromise the note was to be credited with $25 on that account. The defendant did not put on any evidence. Tbe jury found, on tbe issues submitted, tbat tbe compromise was made tbat upon payment of all tbe note except $25 tbe note would be paid and settled; tbat tbe plaintiff made tbe payment as agreed, but tbat tbe defendant bas failed to comply witb bis agreement, and, tbougb in possession of tbe note, refused to surrender it.

There is no controversy over tbe facts, and tbe defendant relies upon bis motion to nonsuit, wbieb tbe judge refused. It is true, tbe plaintiff might have brought an action in equity for tbe cancellation and surrender of tbe note; but under our statute, Revisal, 859, tbe compromise, which tbe jury finds was made, was valid at law and enforcible, and tbe plaintiff was entitled upon tbe issues of fact found to have tbe note treated as paid and settled, and, therefore, to have tbe same delivered to him. For tbat purpose claim and delivery was as suitable to procure tbe possession of tbe note as a decree in equity would have been for tbe cancellation and delivery of tbe note as tbe result of payment.

Claim and delivery is an appropriate proceeding to recover tbe note when no decree of cancellation or other equitable decree is sought. Bridgets v. Ormond, 148 N. C., 377; Pasterfield v. Sawyer, 133 N. C., 43; s. c., 132 N. C., 259; Ragland v. Currin, 64 N. C., 357. Tbe remedy here asked is purely legal — for possession of tbe note.

' If it was agreed, in compromise, as plaintiff testified and tbe jury have found, tbat upon payment of all tbe note except $25 tbe note was to be deemed paid (and it is admitted tbat the plaintiff has done this), then tbe note became tbe property of tbe plaintiff, and be was entitled to have it delivered up to him by tbe defendant. Tbe plaintiff bas chosen to enforce this right to tbe specific possession of tbe note, instead of resorting to a proceeding in equity to obtain an order of the court to have tbe note canceled. He probably chose this remedy because of tbe .small amount involved ($25). He bad a right to elect this remedy, if he so chose. The courts are no longer so solicitous as to tbe technical form of remedy, but seek to render justice by tbe most direct and expeditious method, and when practicable will permit tbe remedy selected by tbe plaintiff.

Tbe jury find tbat tbe note bas been paid in accordance with tbe compromise, and tbe plaintiff is therefore entitled to its possession. It is true tbat as tbe note bas been settled, it is of no value to tbe defendant, but the plaintiff after payment thereof is entitled to its possession, as a receipt.or as a proof of payment. Indeed, tbe defendant is claiming that be is entitled to collect the other $25 upon the note, arid hence refuses to surrender it. But tbe verdict bas settled this against him.

If I were speaking for myself, and not for tbe Court, I should say that there is no reason, the amount being less than $200, why an equitable decree might not be made before tbe justice’s court for cancellation. It bas been said tbat “tbe justice bas no equitable jurisdiction,” but nothing to this effect can be found in tbe Constitution, which absolutely abolishes all distinction between law and equity. The justice of the peace cannot issue an injunction, neither can a justice of this Court, but that is simply because the statute does not provide for it. However, this is merely speaking for myself for the future consideration of the Bar. Preconceived opinions are not infrequently mistaken for provisions which have been abolished, and not continued in force, by the Constitution.

No error.

Walker and AlleN, JJ., concurring in result.  