Hankinson v. Hankinson

• Decision Date: 22 July 1901
• Citation: 39 S.E. 385,61 S.C. 193
• Parties: HANKINSON v. HANKINSON.
• Court: South Carolina Supreme Court

39 S.E. 385

61 S.C. 193

HANKINSON v. HANKINSON.

Supreme Court of South Carolina

July 22, 1901

Appeal from common pleas circuit court of Aiken county; Gary, Judge.

Action by Frank H. Hankinson against Luther H Hankinson. Judgment for plaintiff, and defendant appeals. Reversed.

The following is the circuit decree:

"The amended complaint upon which this case was heard by me was omitted from the record furnished me by the attorneys in the cause. As a consequence, I have some difficulty in stating the issues made by the pleadings. The action is for damages alleged to have been sustained by the plaintiff under the following circumstances: On the 10th day of February 1897, Preston Tutson rented a certain farm from the plaintiff, Frank H. Hankinson, for which he agreed to pay as rent $100. At this time it appears that Tutson was indebted to the plaintiff in the sum of $166.06, purchase money of a mule sold by plaintiff to Tutson, and also for supplies advanced. As evidence of the debt, Tutson executed his note to Hankinson for the amount of $266.06, bearing date 10th of February, 1897, and to secure the payment of said note Tutson at the same time executed a mortgage to Hankinson of two mules, and his crop of every kind grown during the year 1897 on the tract of land rented from plaintiff. This mortgage was recorded on the 18th day of February, 1897. It appears that in November of that year Tutson had harvested said cotton amounting to three bales, and stored it in a barn on said premises, separate and apart to itself, and delivered it to the plaintiff, Hankinson, as part payment for the rent and mortgage debt due him. Shortly thereafter, and before Hankinson had removed said cotton, the defendant, Luther H Hankinson, had the same seized under a warrant, foreclosing a lien which Tutson had given him, of date 12th March, 1897, and recorded 8th of April, 1897, for the sum of $40. While the cotton was still in the possession of the plaintiff, in said barn, the defendant, Luther Hankinson, sent his wagon, with his agent or servant, and had the barn broken open, the cotton carried away, and ginned and marketed in Augusta, Ga., and with the proceeds he paid the amount of his said lien and the costs. The overplus he turned over to Tutson, the tenant of plaintiff. At the same time the cotton was levied upon and seized, the constable making the levy, under the same process, levied upon the cotton, corn, potatoes, and cane remaining in the field, and forbade Tutson from gathering the same. No effort was made on the part of the defendant, nor of the constable who levied upon the same, to gather said crop, or any part thereof, and the same was destroyed in the field, as a result. The defendant, while practically conceding these facts, insists that he is not liable, for the reason that the plaintiff has estopped himself by conduct from asserting his alleged claim of damages, under the following facts: In the spring of the year 1897 the firm of Nixson & Danforth, of Augusta, advanced to Tutson certain supplies, on the agreement of the plaintiff that Tutson would pay them out of the first cotton that was made in the premises. In accordance with this agreement, Tutson shipped eight bales of cotton grown on the place, and covered by the plaintiff's lien, to said Nixson & Danforth, with the knowledge and consent of plaintiff. This cotton was sold by Nixson & Danforth, and after satisfying their claim there was a balance, which was credited on the plaintiff's mortgage. The mule sold by Hankinson had also been returned, and a credit of $85 allowed Tutson, that being the original price agreed upon. After these credits, there was still a balance due Hankinson of $131. As already noted, the defendant's contention is the proceeds of this cotton should have been applied to this debt, and that the plaintiff, having consented for it to be applied to the debt of Nixson & Danforth, is now estopped from claiming damages from this defendant by reason of the seizure of the three bales of cotton, or by reason of the levy of the crops in the field that were not gathered and were wasted. I fail to see where the principle of estoppel should be invoked. Hankinson simply released his lien on a part of his security, knowing possibly that he was amply secured. Why, then, should this act on his part make his lien on that property which had not been released junior in rank to the lien of the defendant? There was no privity between the plaintiff and the defendant; no obligation on the plaintiff to aid the defendant, whose lien was junior to that of the plaintiff. Suppose, on the other hand, the plaintiff had failed to agree to release his lien on said cotton, but had sold it and applied enough of the proceeds to the payment of his debt, and turned the overplus over to Tutson, and Tutson had paid it on the account of Nixson & Danforth; would it be contended that defendant could call upon plaintiff to reimburse him the amount so paid? I think not. It is therefore ordered that the plea of estoppel be overruled.

The next question, then, is, to what extent has the plaintiff been damaged by the acts of the defendant? Certainly to the value of three bales of cotton illegally appropriated by the defendant, which he sold at a net profit of $68.32, as shown by statement of sales, and to the value of the crop in the field, to the extent that his lien of the same has been impaired or destroyed. The evidence establishes the fact that the crop destroyed in the field was worth at least $75. I conclude, therefore, as propositions of law, that the plaintiff's mortgage and his landlord's lien are superior to the lien of the defendant; that the mortgage was a lien on the crop grown on the premises that year, and was sufficient to pledge the same as a security to pay the debt of the plaintiff; that the plaintiff has been damaged to the extent of the debt remaining unpaid, to wit, $129.57. A statement of which is as follows: Principal on note and mortgage, $266.06; interest from 10th February, 1897, to 2d March, 1898, $22.53,--$288.59. Credits: By mule returned, $85.00; by proceeds of cotton, $74.02,--$159.02. Amount due March 2, 1898, $129.57. It is therefore adjudged that the plaintiff have judgment against the defendant for the sum of $129.57."

Messrs. Hendersons, for appellant.

G. W. Croft & Son and P. A. Emanuel, for respondent.

POPE J.

To understand the questions presented by this appeal, a brief recital of the facts upon which the action is bottomed should be made. It seems that on the 10th day of February, 1897, one Preston Tutson was indebted to the plaintiff, Frank H Hankinson, in and for the sum of $266.06, and on the same day, in order to secure the payment of said sum on or before the 15th day of October, 1897, the said Preston Tutson executed a chattel mortgage wherein he pledged to said plaintiff, Frank H. Hankinson, the following goods, chattels, crops, and stock, to wit: "All my household and kitchen furniture, books, pictures, jewelry, musical instruments, saddles, buggy and wagon, harness, farming tools, one gray mare mule, named 'Pet,' and one horse black mule, named 'Logan,' and all other goods, chattels, crops, and stock of every kind which I now have or may hereafter in any manner acquire before the payment of this note. And this debt is made and money obtained upon the positive representation that the above property is absolutely mine, and that no one has any claim whatever on it, and, all the crop or crops planted by me, or by others for me, or in which I am or may be in [any] way interested, during the year 1897, on any place whatever, and especially on the Hawkinson Old Mill place, in Hammond township, Aiken county, and state of South Carolina, and bounded by lands of Dr. J. M. Galphin, Ramsey, and Pat. Calhoun, and others, and also on Mrs. Ida Calhoun's place, in Hammond township, Aiken county, and state of South Carolina, bounded by lands of Dr. Galphin, Ramsey, and others. To have and to hold all and singular, the said goods, chattels, crops, and stock, unto the said F. H. Hankinson and his assigns, forever; *** and provided, further, that the mortgagor may retain possession of said goods and chattels until default shall be made in the payment of said note. ***" This chattel mortgage was duly recorded in the office of the register of mesne conveyance for Aiken county, S. C., on the 17th day of February, 1897. On the 12th day of March, 1897, the defendant, Luther H. Hankinson, agreed to and with the said Preston Tutson to advance to said Tutson two tons of commercial fertilizer, of the value of $40, to cultivate a crop during the year 1897, on the plantation known as F. H....