Bingham v. Harby

• Decision Date: 26 March 1912
• Citation: 74 S.E. 369,91 S.C. 121
• Parties: BINGHAM. v. HARBY.
• Court: South Carolina Supreme Court

74 S.E. 369

(91 S.C. 121)

BINGHAM.

v.HARBY.

Supreme Court of South Carolina.

March 26, 1912.

1. Chattel Mortgages (§ 170*)—Crops — Prior Mortgagee—Rights—Conversion. Where plaintiff held a prior mortgage on certain cotton to secure a debt of the grower, which mortgage was properly recorded, the subsequent holder of a second crop mortgage was charged with notice of plaintiff's rights under the prior mortgage, and was liable in conversion for the seizure and sale of cotton covered thereby, though he had no actual knowledge of the existence of plaintiff's prior lien.

[Ed. Note.—For other cases, see Chattel Mortgages. Cent. Dig. § 305; Dec. Dig. § 170;* Trover and Conversion, Cent. Dig. § 140.]

2. Chattel Mortgages (§ 174*)—Sale op Mortgaged Property—Rights of Mortgagee.

While a prior chattel mortgagee was entitled to follow the mortgaged property into the hands of a purchaser, under a sale by a junior mortgagee, the sale being insufficient to divest the prior mortgagee's title, he was not bound to pursue such remedy.

[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. §§ 327-329; Dec. Dig. § 174.*]

Watts, J., dissenting.

Appeal from Common Pleas Circuit Court of Sumter County; J. W. De Vore, Judge.

"To be officially reported."

Action by R. H. Bingham against H. J. Harby. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

L. D. Jennings, for appellant.

Lee & Moise, for respondent.

GARY, C. J. This is an action for damages alleged to have been sustained by the plaintiff through the wrongful act of the defendant in seizing and converting to his own use the proceeds of two bales of cotton, which he had sold and placed beyond the reach of the plaintiff, under a mortgage, subsequent to a mortgage in favor of the plaintiff, covering said property, which was duly recorded.

It appears that on the 14th of February, 1910, the plaintiff entered into an agreement with Aaron Sumter, who was then indebted to him in the sum of $79, whereby it was agreed that the plaintiff would make advances to Aaron Sumter during that year to enable him to make a crop on his own land, which advances were made by the plaintiff; that, in order to secure the indebtedness of $79 and the said advances, Aaron Sumter executed to the plaintiff a mortgage on all crops to be raised on said land during the year 1910, which was recorded on the 18th of February, 1910. At the time of the said seizure, the condition of this mortgage had been broken. His honor, the presiding judge, directed the jury to render a verdict in favor of the defendant, on the ground that he was not liable, unless he had actual notice of the plaintiff's mortgage, of which fact there was no evidence, whereupon the plaintiff appealed.

The practical question raised by this appeal is whether there was error on the part of his honor, the presiding judge, in applying the principle recognized in the case of Graham v. Seignious, 53 S. C. 132, 31 S. E. 51, to the fact of the case under consideration. In that case, the court said: "If the defendant received and disposed of the cotton mentioned in the complaint, having actual notice of the plaintiff's prior lien for rent, then he became liable, not for the value of the cotton or its proceeds, but for the damages which the plaintiff sustained by reason of the impairment of the security which the plaintiff had for enforcing payment of his lien for rent."

There are, however, material differences between an agricultural lien and a chattel mortgage, which are pointed out in the case of Sternberger v. McSween, 14 S. C. 35, as follows: "One who attempts to enforce his rights under a lien, which is the creature of a statute, must confine himself to the remedy furnished by the statute. The right derived is solely from the statute, and the remedy resorted to must be that furnished by the statute. The attempt to invest an agricultural lien with the qualities of a chattel mortgage is an attempt to incorporate into the statute provisions which the Legislature has not seen fit to adopt; for certainly, if that body had designed to give an agricultural lien the qualities of a chattel mortgage, it would have been very easy to have said so. On the contrary, however, the agreement provided for by the statute, which creates the lien, lacks one of the qualities of a chattel mortgage which has been held (Green v. Jacobs, 5 S. C. 283) to be essential to invest the mortgagee with the right to the possession of the property, in that it does not contemplate any provision whatever for the transfer of title: and, as we have seen, the remedy provided by the statute manifestly contemplates no change in the title, but, on the other hand, presupposes the continuance of the title in the lienor, subject, however, to the lien until it is transferred by the execution of the process of the law, just as, in the case of property covered by the lien of a judgment or execution, the title of the property remains in the judgment debtor until it is transferred by a sale under process of law, and one who purchases from the judgment debtor takes subject to the lien, which follows the property into whosesoever hands it may go; but the purchaser, after he has disposed of it, cannot be made liable for the value of the property, or for the proceeds of its sale." This language is quoted with approval in the case of Kennedy v. Reames, 15 S. C. 548.

The language hereinbefore quoted from Graham v. Seignious, 53 S. C. 132, 31 S. E. 51, was used for the purpose of showing that...