
    THOMAS ROSE v. DAVID COBLE and HENRY MOORE.
    A purpose to defraud creditors on the part of the pledgor not participated in by the pledgee, does not affect the pledge.
    Although for the validity of a pledge it is necessary that possession shall be given to the pledgee and not be resumed by the pledgor — this rule does not embrace a case where the pledge is re-delivered to the pledgor as an agent of the pledgee.
    
    The rule that tortfeasors cannot dispute the title of him from whose possession they took the thing in dispute, does not apply where they are sued by such person in trow.
    
    Trover, tried at a Special Terra of the Superior Court of Guilford, held upon the second Monday in December 1867, before Warren, J.
    
    The plaintiff claimed a special property in the mare in question, under a pledge by one Garner his brother-in-law, dated 13th October 1866, made to secure him as his creditor and also as his surety. She had been delivered to the plaintiff, and was in his possession when taken by the defendants, who were constables having claims in their hands against Garner. It was shown that after the plaintiff had taken possession of the mare, Garner again had her in his possession and offered her for sale at Greensboro; but he and Rose both swore that he did this as the agent of Rose, and that the proceeds of the sale, if effected, were to have been applied to the debt due to the latter. There was evidence also ■ that Garner was much in debt, and was seeking to elude certain creditors.
    His Honor charged the jury, (1) that any fraudulent purpose of Garner to which Rose was not a party, would not affect the latter, but if there was an arrangement between them to defraud Garner’s creditors, the plaintiff could not recover; (2) that if Rose had received the mare bona fide as a pledge for debts, its subsequent temporary possession by Garner, if this ivere as agent of Bose, would not affect the plaintiff’s right to recover; but if Garner’s possession were for himself, that was inconsistent with the idea of a pledge, and in such case the plaintiff could not recover.
    Verdict for the plaintiff; Rule for New Trial discharged; Judgment, and Appeal.
    
      McLean, Dick and Gorrell, for the appellants,
    upon the point that the title of the plaintiff was in question in the form of action employed by him, cited Hostler v. Scull, 2 Hay., 129; Laspeyre v. McFarland, N. C. Term, 187.
    
      Scott & Scott, contra.
    
    As regards the 1st point made by his Honor, the question of title did not arise, as defendants were tort feasors. Worth v. Northam, 4 Ire., 102. The ruling however was correct. See Stone v. Marshall, 7 Jon., 300.
    To support the 2d point in the charge, they cited Story, Bail., s. 299; 2 Kent, 745, note (2); Macomber v. Parker, 14 Pick, 497, &c; Bodenhammer v. Newsom, 5 Jon., 107; Beeves v. Capper, 4 Bing. N. C. 54; 2 Taunt., 268.
   Reads J.

The defendant’s first objection is, “that the transaction was fraudulent.” Whether there was fraud or not was a question of fact for the jury, under proper instructions from the court. That part of the charge which was excepted t,o is, “that any fraudulent purpose on the part of the pledgor, to which the pledgee was not a party, did not affect the pledge.” We see no error in this. To render a contract void for fraud, the fraud must affect the contract. A contract is not the purpose of one but the agreement of ttoo minds.

The defendant’s second exception cannot be sustained. It-is true that to the validity of a pledge it is necessary that there should be a delivery to the pledgee, and that his possession should continue, and that the pledge is lost by giving the pledgor the control of it. But the fact that the pledgee authorized the pledgor as his agent to take the mare to Greensboro to try to sell her to raise money to pay the debt for which she was pledged, does not contravene that rule, because the possession of the agent was the possession of the principal.

It was insisted for the plaintiff in this court, that the defendants were tort feasors and therefore could not question his title. That would be true if this were an action of trespass ; but, it is not true in an action of trover, which involves the title and in which it is alleged that the defendants found and converted his property. But the other points being for the plaintiff, this is not material.

There is no error.

Per Curiam. Judgment affirmed.  