Brayton v. Beall

• Decision Date: 20 February 1906
• Parties: BRAYTON v. BEALL.
• Court: South Carolina Supreme Court

53 S.E. 641

73 S.C. 308

BRAYTON v. BEALL.

Supreme Court of South Carolina

February 20, 1906

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

Action by Ellery M. Brayton against Edward A Beall. Judgment for plaintiff, and defendant appeals. Affirmed.

Logan & Edmunds, for appellant. A. J. & H. P. Green, for respondent.

JONES J.

This is an action in claim and delivery of a mule, and resulted in a judgment in favor of the plaintiff for recovery of the mule, or $100 the value thereof, in case a delivery could not be had, and $11 damages. It appears that in February, 1903, an individual whose surname was McKenzie, residing in Richland county, as a tenant on the lands of plaintiff, executed to the plaintiff, Brayton, a chattel mortgage of the mule in question, signing his name thereto as R. C. McKenzie, which mortgage was duly recorded in the office of the clerk of the court of said county. This same individual subsequently on the 13th day of June, 1903, executed a chattel mortgage on the same mule to the defendant, Beall, signing his name thereto as W. A. McKenzie, which mortgage was duly recorded in the same office. The defendant took this mortgage, after examining the records and ascertaining that no mortgage had been executed on the mule in question by W. A. McKenzie. The evidence in behalf of plaintiff was to the effect that McKenzie was known as R. C. McKenzie; that he rented lands of plaintiff as such; that he had previously executed mortgages and signed notes with that name; that he had bought the mule in question originally from Gregory-Rhea Mule Co., and had executed to that firm a mortgage thereon in the name of R. C. McKenzie. The evidence in behalf of the defendant was to the effect that he was called "Alex." when a boy, as testified to by his brother; that in 1897 he executed a bill of sale signing his name as W. A. McKenzie; and that since the transaction in question he has bought goods and executed papers as W. A. McKenzie.

1. The court instructed the jury: "If he was known in the community as well by the name of R. C. McKenzie as by the name of W. A. McKenzie, both, if he was known by both names and was one and the same person, and made a mortgage of the property in dispute to Brayton and also to Beall, then Brayton's mortgage would be just as good as if he had made it in the name of W. A. McKenzie." The appellant excepts to this charge as error, and contends that the court should have charged as follows: "(a) That the name of an individual consists presumptively of one Christian or given name, and one surname or family name; and that when an individual receives a name in baptism or otherwise, in this state, it becomes and remains for all intents and purposes said individual's lawful name for all time, unless, upon a desire to change it, said individual resorts to the mode prescribed in section 2699, vol. 1, of the Code of Laws of South Carolina, 1902. (b) That an individual can have but one lawful name at one and the same time, and that if the jury should find, in this instance, that the mortgagor had, at the time of the execution of the mortgage to the plaintiff, Brayton, changed his name from that given him in infancy, then in order for said mortgage to have priority of lien over that given to the defendant Beall it must be proven that the said defendant had actual or constructive knowledge of the change thereof." Appellant assumes that the original and true name of the mortgagor is W. A. McKenzie, and thereupon argues that he could not acquire the name of R. C. McKenzie except by the method indicated in the statute. But there is quite as much ground in the testimony for concluding that the true name is R. C. McKenzie. Moreover, the statutes (section 2699 et seq.), which provide a mode of changing the name, do not abrogate, but are in affirmance and aid of, the common-law rule. Laflin & Rand Powder Co. v. Steytler, 146 Pa. 434, 23 A. 215, 14 L. R. A. 690. When a name is changed under the method prescribed by statute, the time of the change is fixed with certainty, and thereafter the person so changing his name may be sued, plead and be impleaded by his new name, and no other. This, however, does not otherwise affect the common-law right of a person to change his name. At common law a man may lawfully change his name, or by general usage or habit acquire another name than that originally borne by him, without the intervention of court or Legislature. City Council v. King, 4 McCord, 487; Miller v. George, 30 S.C. 528, 9 S.E. 659; 21 Ency. Law, 311.

2. The finding of the jury under the charge above given shows conclusively that the mortgagor, McKenzie, was as well known in the community by the name of R. C. McKenzie as by the name of W. A. McKenzie. The real question of law, then, is whether, under such circumstances, the record of Brayton's mortgage given by R. C. McKenzie...