Adams v. Fellers

• Decision Date: 27 March 1911
• Citation: 70 S.E. 722,88 S.C. 212
• Parties: ADAMS v. FELLERS.
• Court: South Carolina Supreme Court

70 S.E. 722

88 S.C. 212

ADAMS v. FELLERS.

Supreme Court of South Carolina

March 27, 1911

Appeal from Common Pleas Circuit Court of Greenwood County; John S Wilson, Judge.

Action by Worley Adams against G. K. Fellers. Judgment for defendant, and plaintiff appeals. Reversed.

Geo. T Magill, for appellant. D. H. Magill, for respondent.

WOODS J.

In this action for the recovery of a motion picture machine in the possession of the defendant, the circuit court, after the testimony had been taken, directed a verdict for the defendant.

The facts in the case, which are undisputed, are these: On April 8, 1910, the plaintiff, Adams, who is a resident of Royston Ga., entered into a contract in writing at that place with one J. G. Heatherly, who was at that time living at Elberton Ga. By that contract, plaintiff agreed to rent to Heatherly the motion picture machine which is the subject of this action, receiving in return therefor a stipulated rental. Plaintiff testified that the machine was to be operated at Elberton, Ga.; but at some time before June 10, 1910, Heatherly without his knowledge or consent removed the property to Greenwood, S. C., and on that date entered into a formal copartnership with the defendant Fellers; their purpose being to conduct a motion picture theater in that city. Ten days later Heatherly made a deed to defendant for valuable consideration, covering his one-half interest in the theater, including the property in dispute, and left for parts unknown. On July 2d Adams learned for the first time that his machine had been removed to South Carolina, and on the 4th came to Greenwood and made formal demand of Fellers for the property. On his refusal to deliver this action was brought.

The circuit judge directed a verdict for the defendant, holding that under the undisputed testimony Fellers was a bona fide purchaser without notice of plaintiff's interest in the property, and as such he was protected in his title by section 2655, Code of Laws S.C. 1902, which provides "Every agreement between the vendor and vendee, bailor and bailee of personal property whereby the vendor or bailor shall reserve to himself any interest in the same shall be null and void as to subsequent creditors or purchasers for valuable consideration without notice unless the same shall be reduced to writing and recorded in the manner now provided by law for the recording of mortgages; but nothing herein contained shall apply to livery stable keepers, innkeepers, or any other persons letting or hiring property for temporary use, or depositing such property for the purpose of having repairs or work or labor done thereon." In support of the ruling that this section is applicable to the contract in question, respondent relies on the cases of Ex parte Dickinson, 29 S.C. 453, 7 S.E. 593, 1 L. R. A. 685, 13 Am. St. Rep. 749, and Ludden & Bates v. Dusenbury, 27 S.C. 471, 4 S.E. 60. In Ex parte Dickinson an assignment for the benefit of creditors, executed in New York, containing preferences as to certain creditors, and covering among other property real estate and personalty situated in Lancaster county, S. C., was attacked as null and void under the South Carolina statute. The court upheld this contention, but expressly limited its holding to the point "that a transfer of personal property located in one state, by the owner in the state of his domicile, valid according to the laws of the state, but in violation of the laws of the state where the property was actually located, could not be recognized by the courts of the latter state." In the case of Ludden & Bates v. Dusenbury an agreement was entered into in Georgia between the plaintiff and one Franks for the rent of an organ. According to the terms of the contract, the organ was shipped from Goldsboro, N. C., to Franks at Bucksville, Horry county, where it remained for some time in the depot. Under these circumstances, never having been delivered to the consignee, it was levied on by his creditors and sold at execution sale to the defendant. The contract was never recorded in this state, as required by section 2655. The court held that defendant's title was protected under that section. The contract itself contemplated the holding of the property in this state. Therefore it fell under the laws of South Carolina, and the owner who had delivered it to Franks could claim protection only by compliance with the registry laws of this state. The distinction between these cases and the case at bar is obvious. Here the situs of the property was in Georgia, where both parties resided, and it was their intention that it should remain in Georgia. The law of Georgia did not require the contract to be recorded, and, further, did not allow the bailee in such cases to remove the property from within the state without the consent of the bailor. Adams, the plaintiff in this action, did everything required by the law of the state of the residence of both parties to the contract, and where the...