Burriss v. Owen

• Decision Date: 03 April 1907
• Citation: 57 S.E. 542,76 S.C. 481
• Parties: BURRISS v. OWEN.
• Court: South Carolina Supreme Court

57 S.E. 542

76 S.C. 481

BURRISS v. OWEN.

Supreme Court of South Carolina

April 3, 1907

Appeal from Common Pleas Circuit Court of Greenville County Aldrich, Judge.

Action by R. A. Burriss against W. F. C. Owen. Judgment for plaintiff. Defendant appeals. Modified.

H. K Townes, for appellant. J. A. McCullough and W. H. Earle, for respondent.

WOODS J.

This action was brought by the plaintiff, as mortgagee after condition broken, to recover the possession of personal property thus described in the mortgage: ""One bowling alley outfit, consisting of two alley beds, twenty pins, twelve balls, and one ball return." The defendant claimed to be a purchaser for valuable consideration without notice. The circuit judge directed a verdict for the plaintiff, and the defendant appeals.

There is no dispute as to the material facts. On July 15, 1904, E O. Erwin and J. W. Ballard executed to one C. L. Burriss a chattel mortgage of the property in dispute to secure the payment of eight notes of that date for $26.25 each, payable on the 1st of September, 1904, 15th of October, 1904, 1st of December, 1904, 15th of January, 1905, 1st of March, 1905, 15th of May, 1905, 1st of July, 1905, September 15, 1905, with interest on each note from maturity at the rate of 8 per cent. per annum. Two payments of $26.25 each were made September 20, 1904, and October 28, 1904. On January 23, 1905, C. L. Burriss assigned the notes and mortgage to the plaintiff. The notes were correctly set forth in the mortgage, but when the mortgage was filed for record the register of mesne conveyances, instead of recording it as required by law, indexed it as a mortgage for $26.25 only. The defendant, in 1904, purchased with only such notice as the index afforded. The circuit court held the mistake in recording, which had misled the purchaser, could afford him no protection against the mortgagee, because the mortgagee was not responsible for the mistake. There is difference of opinion on the point in other jurisdictions, but in this state the doctrine is firmly established, that the purchaser of mortgaged property, in the absence of express notice, may safely rely on the record as to the amount of the mortgage debt. Sternberger v. McSween, 14 S.C. 37; Building & Loan Association v. McCartha, 43 S.C. 72, 20 S.E. 807. The verdict, therefore, cannot be sustained on this ground.

But the plaintiff's motion for the direction of a verdict was...