Flenniken v. Scruggs

• Decision Date: 29 March 1881
• Docket Number: CASE No. 1015.
• Citation: 15 S.C. 88
• Parties: FLENNIKEN v. SCRUGGS.
• Court: South Carolina Supreme Court

15 S.C. 88

FLENNIKEN

v.SCRUGGS.

CASE No. 1015.

Supreme Court of South Carolina.

Mar. 29th, 1881.

1. A being indebted to B by note, secured by a mortgage of a mare, dated April 24th, obtained the verbal permission of B to exchange with C the mare for a mule, provided A should give to B a lien on the mule. The exchange was made May 4th (the condition of the mortgage being then broken,) but C had no knowledge of the mortgage or of the verbal permission. This mortgage was recorded May 24th. A never gave the lien to B, and the mule died. Held, that B was not entitled to recover from C the possession of the mare.

2. The Circuit judge instructed the jury that if they believed the testimony they must find for defendant. There being no conflict of testimony, this instruction was free from error.

Before HUDSON, J., Fairfield, September, 1880.

This was an action commenced in June, 1880, by David R. Flenniken to recover from Clough H. Scruggs a bay mare, of the value of $150, and for $100, his damages. To the full statement made in the opinion of this court, it is deemed proper to add only the terms of the agreement of April 24th, signed and sealed by D. S. Carter, which was as follows:

“Received this 24th day of April, A. D. 1880, of D. R. Flenniken, permission to trade one bay mare mule, which he has a mortgage on, for one bay mare belonging to F. Elder. The claim on the mule to be transferred to the mare-the said described property to be delivered to the aforesaid D. R. Flenniken or order, whenever demanded. And I hereby agree and bind myself to keep the said property in my possession, subject to the order of said D. R. Flenniken, and pay the full value of same if lost, by death or otherwise.

Witness my hand and seal the day and year above named.”

Verdict for defendant. Plaintiff appealed.

Mr. J. H. Rion, for appellant.

After condition broken, the mortgagee of a chattel is not absolute owner until foreclosure or its equivalent, but he has a right to the actual possession and control of the property for the purpose of subjecting it to the satisfaction of the debt. Such is the modern doctrine. Herm. on Chat. Mort., §§ 96, 194; Rice's Eq. 300; 1 Strob. Eq. 342;2 S. C. 283. Carter could sell without plaintiff's permission; but he wanted to have the mortgage lien released. This plaintiff consented to do, only upon a condition which was not fulfilled. Defendant not knowing of this agreement, has not been prejudiced by it. And this agreement could not be carried out, because there was a mortgage to Elliott covering the mare. Unless plaintiff was absolute owner, Carter cannot be called plaintiff's agent.

Mr. A. M. Mackey, contra.

The opinion of the court was delivered by

MCIVER, A. J.

The object of this action was to recover the possession of a certain bay mare found in the possession of the defendant. It seems that one Carter, being indebted to the plaintiff in the sum of $700, on February 15th, 1878, gave his note to the plaintiff for the said amount, payable on November 1st, 1878, and, to secure the payment thereof, executed a mortgage to Flenniken upon various articles of personal property, amongst which was a certain mule. Carter, wishing to trade this mule, applied for and obtained permission from the plaintiff to do so, and on April 10th, 1880, traded the mule to one Elder for a mare, and on April 24th, 1880, he executed to the plaintiff an instrument in writing in the nature of a mortgage on the mare last mentioned, which instrument was recorded on May 24th, 1880. After the date of this instrument and before it was recorded, to wit, on May 4th, 1880, Carter again wishing to trade, swapped the mare to defendant for a mule, having previously applied for and obtained verbal permission from the plaintiff to do so, upon the condition that he “should give the plaintiff a lien on the mule received for the mare,” which he never did. This mule died, but at what time is not stated in the ““case,” and the plaintiff finding defendant in possession of the mare in question, made a demand for her. Defendant at first agreed to give her up, but after taking legal advice he declined to do so, when this action was brought. It also appeared that the mule traded by defendant to Carter was under mortgage to one Elliott to indemnify him as endorser for defendant, but that when defendant found that the mare which he had obtained from Carter was claimed by the plaintiff, he gave Elliott additional security or indemnity. There was no evidence that defendant knew of the mortgage on the mare at the time he traded for her, or of the condition upon which Carter had obtained permission from plaintiff to make the trade.

The Circuit judge charged the jury, among other things: First. “That when there is a breach of the condition of a mortgage of personal property, the article mortgaged becomes the absolute property of the mortgagee, the possession of the mortgagor being thence...