Caldwell v. McCaw

• Decision Date: 29 August 1927
• Docket Number: 12260.
• Parties: CALDWELL v. McCAW et al.
• Court: South Carolina Supreme Court

139 S.E. 174

141 S.C. 86

CALDWELL v. McCAW et al.

No. 12260.

Supreme Court of South Carolina

August 29, 1927

Appeal from Common Pleas Circuit Court of York County; M. L. Bonham Judge.

Action by R. H. G. Caldwell against Robert McCaw, the Planters' Bank of Sharon, and another. From an order overruling the demurrer, defendant Bank alone appeals. Affirmed.

W. W Lewis and John R. Hart, both of York, for appellant.

Marion & Finley, of York, for respondent.

STABLER J.

This is an action in claim and delivery. The complaint, as amended by leave of the court, sets up a claim to the crops of the defendant Robert McCaw, grown during the year 1921, by virtue of a mortgage executed by McCaw in favor of the plaintiff on the 18th day of March of that year. The complaint alleges that delivery of possession of the crops had been demanded that the demand had been refused, and that the reason for the withholding was that the defendant the Planters' Bank of Sharon holds, or claims to hold, on the same crops a mortgage prior to that held by the plaintiff. Paragraphs 6 and 7, with further reference to this alleged mortgage, are as follows:

"(6) That in this connection the plaintiff further answers, and alleges to the best of his knowledge information, and belief the said Planters' Bank has no valid claim or mortgage against the crops of Robert McCaw for the year 1921, and that, if any such mortgage was executed and obtained by the Planters' Bank, it was obtained through fraud and misrepresentations; that the same is a nullity, without force and effect against the plaintiff's mortgage, and it should be so decreed by this court.

(7) The plaintiff further avers that the mortgage claimed to have been executed by the defendant to the Planters' Bank, covering the crops of Robert McCaw for 1921, is without force and effect, and is invalid as against Robert McCaw and against the plaintiff, who claims under a valid mortgage from the said Robert McCaw, for the reason that the said mortgage given by Robert McCaw to the Planters' Bank on January 3, 1921, was changed and altered after the execution and delivery of the same by Robert McCaw to the Planters' Bank, the said alterations consisting in certain erasures and interlineations and additions in the body of the mortgage, and consisting also of the addition of two other parties to the same, to wit, Will McCaw and John McCaw; that such changes and additions were made without the consent of the said Robert McCaw, and were made after the execution of the said mortgage by him; and that for this reason the said mortgage of the Planters' Bank is invalid and constitutes no claim or lien upon the crops of Robert McCaw for the year 1921."

The defendant J. S. Wilkerson appears to have purchased two bales of the cotton in question and to be merely a stakeholder.

The defendant the Planters' Bank filed an answer, setting up a mortgage, dated January 3, 1921, alleged to have been given to it by Robert McCaw. The defendant Robert McCaw by his answer admits the execution of the mortgage set up in the complaint, and alleges that he was unable to deliver his crops to the plaintiff, for the reason that the Planters' Bank was in possession of the same, claiming them under an alleged mortgage given by him on January 3, 1921. With reference to the bank's mortgage, the sixth paragraph of McCaw's answer is as follows:

"(6) In this connection the defendant further avers and alleges that the Planters' Bank has no valid claim or lien upon the crops raised by him for the year 1921 upon the land described in the complaint, for the reason that the mortgage claimed to have been given by him to the said Planters' Bank is void, a nullity, and without force and effect, on account of the same being obtained by misrepresentation and fraud, and for the reason that the said alleged mortgage claimed to have been given by this defendant to the Planters' Bank was materially changed and altered without this defendant's consent after the same had been executed and

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