Lowery v. Gregory

Citation38 S.E. 257,60 S.C. 149
PartiesLOWERY v. GREGORY.
Decision Date03 April 1901
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of Chesterfield county; J. C Klugh, Judge.

Action by J. W. Lowery against T. S. Gregory. From a judgment in defendant's favor, plaintiff appeals. Reversed.

The complaint of the plaintiff shows to the court:

First. That on the 19th day of January, 1898, he made his promissory note in favor of P. B. Huntley for the sum of eighty-two dollars and seventy cents, due October 1, 1898 and on said date he executed his bill of sale, and thereby by way of mortgage, bargained and sold unto the said Huntley two grey mules, in order to secure the payment of the said note as the same became due. Second. That some time during the month of September, A. D. 1898, the plaintiff paid unto the said Huntley on the said note secured by the said bill of sale the sum of forty dollars. Third. That plaintiff is informed and believes that on the 7th day of November, A. D 1898, after said note and bill of sale became due, the said P. B. Huntley, assigned and transferred unto the defendant, T. S. Gregory, as committee of lunacy of W. S. Jackson, the said note and bill of sale. Fourth. That the said defendant, under said bill of sale, as plaintiff is informed and believes, took and seized said mules, and has advertised same for sale. Fifth. That there is only due on said note and bill of sale the sum of forty-two dollars and seventy cents, and interest since 1st day of October, A. D. 1898, at 8 per cent., and plaintiff tendered the said sum of money and interest, and, further, a sum sufficient to pay all the cost and expenses of seizing and keeping said mules, which the said defendant has been subjected to, and demanded said mules and papers from the defendant on the 24th day of January, 1899, but the said defendant declined and refused to accept same, and to deliver said mules and papers to him. Sixth. That the defendant continues to unlawfully withhold the possession of said property from the plaintiff, the cause of such detention being that he claims that no part of said debt has been paid, and that $82.70 and interest and costs is due thereon. Seventh. That the said property has not been taken for any tax, fine, or assessment pursuant to statute, or seized under an execution or attachment against the property of plaintiff, and plaintiff is entitled to the immediate possession thereof. Eighth. That plaintiff has been and is now ready and willing to pay the amount due on said note and bill of sale. Ninth. The actual value of said property is one hundred and fifty dollars."

On motion of defendant's counsel, it was ordered that the plaintiff be nonsuited, and the following are plaintiff's exceptions to said order:

"(1) Because the circuit judge erred in holding, if he so meant to hold, that the bill of sale set out in the case under which the defendant seized the mules described in the complaint was an absolute sale of the property described therein, when all the testimony before the court showed that it was only given as security for the payment of a debt. (2) Because the circuit judge erred in holding, if he so meant to hold, that the plaintiff could not show in this action that the said bill of sale, while absolute on its face, was only intended as a mortgage or security for the payment of a debt, and he erred in holding that same was an absolute sale of the property therein described; whereas, he should have held that it was a question of fact for the jury to find whether the said bill of sale was an absolute sale of the property or a mortgage thereon given to secure a debt. (3) Because the circuit judge erred in holding, if he meant to so hold, that the said bill of sale could be held by the defendant as a security for the payment of any other debt than the one for which it was given as a security by the plaintiff, and that the plaintiff could not recover possession of the property described in the said bill of sale until he had paid or tendered all sums of money which the plaintiff might owe defendant, to wit, that the could not recover the said mules until he paid or tendered, not only the amount due on the note and bill of sale dated January 19, 1898, but also the notes bearing date, respectively, June 3, 1897, and September 2, 1897;
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