Hutchinson v. A. K. Brown Motors

• Decision Date: 18 August 1939
• Docket Number: 14936.
• Parties: HUTCHINSON v. A. K. BROWN MOTORS, Inc.
• Court: South Carolina Supreme Court

4 S.E.2d 268

191 S.C. 319

HUTCHINSON v. A. K. BROWN MOTORS, Inc.

No. 14936.

Supreme Court of South Carolina

August 18, 1939

W Stokes Houck, of Florence, for appellant.

Dalziel & Whitehead, of Lake City, for respondent.

WM. H GRIMBALL, Acting Associate Justice.

This appeal involves the rights of the mortgagee to take possession of a mortgaged chattel when the condition of the mortgage shall have been broken.

According to the record, respondent, on November 15, 1937, executed and delivered to appellant, to secure a portion of the purchase price of a Ford roadster, a chattel mortgage for $65. This mortgage provided for weekly installment payments of $4. It seems that only $5 was paid on this mortgage, the last payment having been made on November 18th.

It seems that there was a discussion between the parties as to the condition of the purchased automobile, and that respondent warned appellant not to take possession of the car under the chattel mortgage without claim and delivery process.

On December 24, 1937, the condition of the mortgage having been broken, when there was no one at respondent's home, and when demand for the past due payments had been made and refused, the appellant through its agents, went to respondent's home and found the automobile in the yard. They took possession of it and towed it to appellant's place of business at Lake City, several blocks away from the residence of respondent. No force whatever was used in the taking. Neither respondent nor anyone else was present when the car was taken.

Respondent then filed this suit, charging an unlawful taking, breach of the peace and conversion. The complaint prayed for damages in the sum of $1,500. Verdict was rendered by the jury for respondent in the sum of $50. And from judgment entered thereon this appeal is prosecuted.

One of the exceptions charges the trial Judge with error in refusing appellant's motion for a non-suit. It is our opinion that, following the authorities of this jurisdiction, the motion for non-suit should have been granted.

This case seems to be controlled by the opinions of this Court in the cases of Willis v. Whittle, 82 S.C. 500, 64 S.E 410; and Justus v. Universal Credit Company, 189 S.C. 487, 1 S.E.2d 508.

In the case of Willis v. Whittle, supra, it appeared that there was a chattel mortgage covering a horse, the conditions of which mortgage had been broken. When the agent of the mortgagee went to the home of the mortgagor to take the horse the mortgagor was absent. However his wife stated to the agent that her husband had instructed her to object to the taking of the horse and accordingly she did object. Nevertheless the agent went to the stable, took the horse and carried her away. This Court held that there was no breach of the peace that the mortgagee had the right to enter upon the premises to take the property; that he did so in an orderly manner and hence was not a trespasser.

"It is well settled", said this Court, "that after condition broken, the legal title to mortgaged chattels vests in the mortgagee. The right of the mortgagee to seize mortgaged chattels after condition broken is a license coupled with an interest, which cannot be revoked by the mortgagor. It is a part of the consideration of the mortgage, and to allow the mortgagor to revoke it would be a fraud upon the rights of the mortgagee, and would very much impair the value of chattel mortgages as securities. The right to seize carries with it...