Appeal
from common pleas circuit court of Williamsburg county
George W. Gage, Judge.
Action
by J. W. Holliday against S. Poston and S. B. Poston, as
co-partners doing business under the firm name of S. Poston & Son. From a judgment of the circuit court in favor of
plaintiff, on appeal from a magistrate's court
defendants appeal. Affirmed.
POPE
J.
Plaintiff
sued defendants in the magistrate's court in claim and
delivery for a mare called "Sallie," valued at $50.
At the trial defendants entered a general denial. After
hearing testimony on both sides, the magistrate rendered
judgment in favor of defendants. An appeal was taken from
this judgment to the court of common pleas for Williamsburg
county. The appeal came on to be heard before his honor
Judge Gage who gave judgment in favor of plaintiff, thereby
reversing the judgment of the magistrate. The text of the
decision of the circuit judge is as follows:
"This
is an appeal by plaintiff from the judgment of a
magistrate. The suit is for the recovery of the possession
of a roan mare called 'Sallie.' The defendants had
seized the mare, claiming her to be covered by a mortgage
from one Calvin Cooper to defendants, dated in January,
1898; and the defendants had sold her to another person
before the commencement of this action. The defendants'
mortgage describes, not a roan, but a bay, mare. There was
much controversy in the testimony about whether this mare
in dispute is a roan or a bay in color; and, if that was
the sole issue, I should not disturb the judgment. But
plaintiff claims under a mortgage made to him by Calvin
Cooper in February, 1899. I am satisfied from the testimony
that the mare in issue, whatever be her color, was not
owned or possessed by Calvin Cooper in January, 1898, when
he mortgaged certain stock to defendants; but he secured
her some time thereafter. If this be so, defendants'
mortgage cannot cover her. The defendants made the question
that the court had no jurisdiction of the subject-matter,
because it (the mare) had passed from the ownership and
possession of defendants before suit brought. The
defendants converted the title when they sold her
wrongfully, and action lies against them for
the mare or her value. My judgment is that the judgment of
the magistrate be reversed, and that plaintiff have
judgment for the mare or her value, to wit, $50."
From
this judgment the defendants now appeal to this court on the
following grounds:
"(1)
Because his honor erred in holding as follows: 'I am
satisfied from the testimony that the mare in question,
whatever be her color, was not owned or possessed by Calvin
Cooper in January, 1898, when he mortgaged certain property
to defendants; but he secured her some time thereafter. If
that be so, defendants' mortgage cannot cover
her,'--whereas he should have held that, although he
was satisfied that Calvin Cooper did acquire the mare some
time (about six weeks) after the making of the mortgage to
Poston & Son, yet she was in fact and law covered by the
mortgage to Poston & Son. (2) Because his honor erred in
holding as follows: 'The defendants made the question
that the court had no jurisdiction of the subject-matter,
because it (the mare) had passed from the ownership and
possession of defendants
before suit brought. The defendants converted the title
when they sold her wrongfully, and action lies against them
for the mare or her value,'--whereas he should have
held that, the mare in dispute having passed from the
possession of the defendants before suit brought, the
action for claim and delivery did not lie against
defendants for the possession of the chattel."
We will
now consider the exceptions in their order. We cannot sustain
the first ground of appeal, because the court of a magistrate
is by section 21 of article 5 of our present state
constitution denied all jurisdiction in chancery cases, so
that we must view the judgment of the circuit court as
covering only a claim at law, and not in equity, set up in
this action brought in a magistrate's court. This being
so, the view which was so ably presented by appellants'
attorney that, although the mare in question was not owned by Calvin Cooper when in January, 1898, he
executed his mortgage to Poston & Son (the appellants here),
yet he intended to include her in said mortgage, and equity
will enforce such intention, though not embodied in the
instrument itself. The circuit judge found as a fact that
Calvin Cooper did not own the mare, and did not include the
same in the mortgage to defendants. As was well said by Chief
Justice McIver in Parker v. Jacobs, 14 S.C. 114:
"There can be no doubt that the rule at law is that it
is necessary to the validity of the mortgage that the
mortgagor should have a present property, either actual or
potential, in the thing mortgaged,"--citing 1 Jones,
Mortg. § 149.
The
second exception cannot be sustained, because the circuit
judge has found as a fact that the defendants wrongfully sold
the mare, and, this being his conclusion of fact, over which
finding of fact we have no control, it causes this case to
fall into the class of cases such as Ladson v.
Mostowitz, 45 S.C. 388, 23 S.E. 49, Dudley v.
Green, 46 S.C. 199, 24 S.E. 186, and Finley v.
Cudd, 42 S.C. 122, 20 S.E. 32, where a judgment for the
property in dispute, or its value in case a delivery cannot
be had, was sustained even where the defendants had sold the
property before suit brought. It is the judgment of this
court that the judgment of the circuit court be affirmed, and
the action be remanded to enforce such judgment of the
circuit court.
GARY
A. J. (concurring).
It is
true the constitution, in the section mentioned by Mr.
Justice POPE, provides that the jurisdiction of magistrates
shall not extend to cases in chancery; but this is not a case
in chancery. In the case of Nix v. Harley, 3 Rich.
Eq. 382, the court says: "He bought the slave
Jenny, to which the plaintiffs were entitled in
remainder after a life estate in their mother, remained in
possession of the slave for more than four years, and then
resold the slave to the person from whom he had
purchased,--all without notice of any right in the
plaintiffs. The bill states the fact that Hillhouse had sold
the slave, and prays that he may be required to pay to the
plaintiff the price received by him, with interest, and
account for the hire before the sale. The claim of the
plaintiffs is one strictly legal, which might be enforced by
trover or assumpsit in the court of law, and no circumstance
is stated requiring the peculiar interposition of this court.
It may be admitted to be a principle of equity, as stated by
Chancellor Harper in Bryan v. Robert, 1 Strob. Eq.
343, and Hill v. Hill, Id. 23, that if a stranger in
possession of my property undertakes to sell it, and delivers
it accordingly, it is at my option either to pursue the
property in the hands of the holder or to affirm the sale as
the act of a voluntary agent, and recover the proceeds in his
hands. *** Plaintiffs proceed for the price of a single slave
sold, and nothing more; and we think that for such a demand,
strictly legal in its character, he should pursue his
recovery in the court of law." As the first exception is
dependent upon a reversal of the facts, which cannot be
reviewed by this court, it was properly overruled.
In
considering the second exception, it will be well to keep in
view the exact question it presents. It raises the single
question whether an action for claim and delivery will lie
when the chattel has passed from the possession of the
defendant before suit brought. The question of demand or
notice of the plaintiff's rights before possession is
delivered to another is not raised by the exception. This
question is conclusively settled by the case of Dudley v
Green, 46 S.C. 199, 24 S.E. 186, in which Mr. Justice
Pope uses this language: "Defendant interposed motion
for a nonsuit. This motion was granted by the circuit judge,
as stated in the order, on the ground that plaintiffs have
failed to prove possession of the property by the defendant
as alleged in the complaint. *** We are not
inclined to adopt any such rule. When a sheriff or any one
else takes personal property belonging to another person, and
upon demand therefor refuses to surrender it, but, on the
contrary, sells such property, the person thus wronged has
his right of action against such sheriff for claim and
delivery, and, in event such delivery cannot be had, then for
its value. It is idle to say the amount of the sale must be
sued for." This ruling is fully sustained by the result
in the case of Sinnott v. Feiock, decided by the court of
appeals of New York, and published in the Central Law Journal
of March 15, 1901, at page 210 (s. c. 59 N.E. 265), in which
the authorities are exhaustively reviewed, and to which there
are copious notes in the Central Law Journal. In that case
the court uses this language: "Originally at common law
the action of replevin lay to recover the possession of goods
illegally
distrained by a landlord. The primary object of the action
was to recover possession of the specific chattels. The form
of the action was so useful that the action was extended to
nearly all cases of unlawful caption or detention of chattels
in specie. In many cases, where the plaintiff was unable to
obtain the return of the chattels, he could recover in the
action their value. Still the action remained essentially one
to recover the possession of chattels, as distinguished from
actions of trespass or trover to recover damages for the
seizure or for the value of the property. *** The...
