Murdouch v. Tuten

• Decision Date: 08 April 1907
• Citation: 57 S.E. 547,76 S.C. 502
• Parties: MURDOUCH v. TUTEN et al.
• Court: South Carolina Supreme Court

57 S.E. 547

76 S.C. 502

MURDOUCH v. TUTEN et al.

Supreme Court of South Carolina

April 8, 1907

Appeal from Common Pleas Circuit Court of Hampton County; Watts Judge.

Action by W. N. Murdouch against S. B. Tuten and J. C. Langford. Judgment for plaintiff. Defendants appeal. Affirmed.

Julius P. Youmans, for appellant. A. McIver Bostick, for respondent.

WOODS J.

This action was brought for the recovery of a lot of land in the town of Brunson, and a sawmill and other machinery situate thereon, together with damages for the alleged wrongful seizure and detention of the same. The plaintiff's claims were that he had bought the property from the defendant Tuten for $1,500, paying $500 cash and agreeing to give a mortgage on the property for the remainder; that no mortgage had been executed, and the unpaid installments of the purchase money were not due; that defendant Tuten with high hand took the property from him and sold it to the defendant Langford, who bought with full knowledge of the plaintiff's title and right of possession. Tuten's defense was that, one of the unpaid installments of the purchase money of the sawmill and machinery being over due, the plaintiff voluntarily returned the property to him, and he afterwards sold it to the defendant Langford, with the knowledge and consent of the plaintiff. Langford, while joining in the general denial of the wrongful seizure of the property and dispossession of the plaintiff, relied especially on plaintiff's express abandonment of claim to the property and consent that he should purchase. On these issues made by the pleadings and evidence the jury found this verdict: "We find the plaintiff is entitled to recover possession of the property described in the complaint, or the value, five hundred and forty-four 33/100 dollars, in the event a delivery cannot be made of the same, and one hundred and sixty dollars damages."

1. The first exception assigns error in the omission of the circuit judge to charge: "That, if the plaintiff was entitled to recover at all, Tuten was entitled to credit for $1,000 and interest, the balance of the purchase money due him by the plaintiff for the property in dispute." This being an action to recover possession, the amount remaining unpaid on the purchase money obviously could not be credited on a verdict for the return of the property. In fixing the value in the event a delivery of the property could not be had, the jury did express their intention that the plaintiff could only recover on account of value the $500 and interest which he had actually paid. The exception is therefore without merit.

2. The second exception, alleging error in the omission to charge that Tuten had an equitable mortgage for the unpaid portion of the purchase money, and that under his equitable mortgage he had a right, after condition broken, to take possession of the personal property, cannot be sustained. The answer of Tuten did not set up an equitable mortgage, there was no request to charge on that subject, and no intimation given the court that such a defense was relied on. But, waiving this, the circuit judge could not properly have charged as a matter of law the defendant Tuten had the right to take and hold the personal property under the alleged equitable mortgage; for, if no installment of the purchase money was due when the property was taken, assuming the existence of an equitable mortgage, it would not have been available as a defense to an action by the mortgagor for possession and damages for an illegal seizure. We do not mean to adjudge, however, anything further as to the equitable...