Bamberg v. Harrison

• Decision Date: 06 September 1911
• Citation: 71 S.E. 1086,89 S.C. 454
• Parties: BAMBERG v. HARRISON et al.
• Court: South Carolina Supreme Court

71 S.E. 1086

89 S.C. 454

BAMBERG v. HARRISON et al.

Supreme Court of South Carolina

September 6, 1911

Appeal from Common Pleas Circuit Court of Barnwell County; W. B Gruber, Special Judge.

"To be officially reported."

Action by G. Frank Bamberg against C. Harrison and another. Judgment for defendants. Plaintiff appeals. Affirmed.

H. M Grahan and J. E. Davis, for appellant. J. E. Tobin and R. A Ellis, for respondents.

WOODS J.

On February 10, 1909, the plaintiff, G. Frank Bamberg, sold a horse to the defendant C. Harrison, taking as security for the purchase money a mortgage on the horse. On March 10 1909, the mortgage was mailed to W. B. Causey, clerk and ex-officio register for Hampton county, to be recorded. Causey died on April 12, 1909, and J. L. Thames, probate judge, under the requirements of the statute, took charge of the clerk's office the next day. The mortgage had not then been recorded, and was not among the papers on file for record, but was handed to Thames by a brother of the deceased clerk and recorded on April 25, 1909. The deputy clerk indorsed on the paper "Recorded the 16th March, 1909," for the reason that the deceased, Causey, had marked on the paper "3-16," thereby indicating that the paper had reached him for filing on March 16th. In the meantime before the recording of the paper the defendant J. L. Ellis on February 22, 1909, took a bill of sale or mortgage on the same horse, and on March 16th purchased him for valuable consideration.

In this action of claim and delivery Ellis claims the horse as a purchaser for valuable consideration without notice. The question whether he had actual notice of the Bamberg mortgage was submitted to the jury and decided in his favor. The circuit judge charged the jury, in effect, that a mortgagee is not protected against a subsequent purchaser or creditor for value without actual notice of the mortgage by the mere fact that the mortgagee had lodged his paper for record within the time allowed by law for the recording of papers that, on the contrary, the subsequent purchaser or creditor without notice is protected if the mortgage has not been actually recorded. The question made by the appeal , then, is whether under a statute which requires a mortgage to be recorded before it can operate as constructive notice a mere delivery of the mortgage to the recording officer can operate as constructive notice to subsequent creditors and...