Justus v. Universal Credit Co.

• Decision Date: 28 February 1939
• Docket Number: 14828.
• Citation: 1 S.E.2d 508,189 S.C. 487
• Parties: JUSTUS v. UNIVERSAL CREDIT CO.
• Court: South Carolina Supreme Court

1 S.E.2d 508

189 S.C. 487

JUSTUS v. UNIVERSAL CREDIT CO.

No. 14828.

Supreme Court of South Carolina

February 28, 1939

Norbert A. Theodore, of Columbia, for appellant.

Clarke W. McCants, of Columbia, for respondent.

BAKER Justice.

This cause of action grows out of the repossession of an automobile from appellant by respondent. In paragraph two of the complaint it is alleged that on July 29, 1937, the appellant purchased a 1937 model Ford automobile for the sum of $750; that in order to secure the balance of the purchase price, namely, $500, the appellant executed a chattel mortgage payable in three installments of $198.50 each, due three, six and nine months from July 24, 1937, said chattel mortgage being sold to the respondent, Universal Credit Company.

Paragraphs three, four and, so much of paragraph five as is applicable of the complaint are as follows:

"3. 'That on Sunday, February 27th, 1938, at about 10:30 A M., several representatives of the defendant, Universal Credit Company, acting for and in behalf of said defendant came to the home of this plaintiff in Lexington County and demanded possession of the said Ford Tudor Sedan and that the plaintiff advised the defendant, through such representatives and agents that he would pay them in full on the following Tuesday, namely, March 1st, 1938. The defendant acting through said agents refused to wait until such time and demanded immediate possession of the said automobile.

"4. The plaintiff informed the defendant through said agents that they could not get the automobile and that they better not try to take it, and that if they did take it they would have to resort to the legal proceedings prescribed by law, namely a claim and delivery. The defendant further advised the defendant's agents that if they attempted to take possession of the automobile without legal proceedings they would have to take it from him by force.

"5. That the agents of the defendant, acting for and in behalf of the defendant, then proceeded down the road and some miles distance, saw the brother of this plaintiff in said Ford automobile and stopped him on the highway and told him, the brother of the plaintiff, that the plaintiff had told them to get the automobile, and the brother of the plaintiff protested and said that he had several chattels in the car that he wished to take home. Thereupon one of the agents of the defendant got into the automobile with the brother of the plaintiff and went to the home of the plaintiff, the agents of the defendant knowing that the plaintiff would not be there and hurriedly emptied the said Ford Tudor Sedan of the chattels that were in said automobile ***."

It is further alleged in the complaint that the taking was illegal and unlawful and accomplished through "subterfuge and it breached the tranquillity which this plaintiff enjoyed in the right to the possession of his property;" that the repossession was over the protest of the plaintiff and without claim and delivery proceedings as demanded by appellant.

The complaint also contains allegations pertaining to the alleged unlawful repossession by the respondent of a radio attached to the automobile, which allegations, the evidence in support thereof, and the exceptions arising therefrom, are not recited or discussed herein, in view of the ultimate decision of this Court in this appeal.

The answer of respondent alleges the purchase of the conditional sales contract from the seller of the automobile and pled the terms and provisions thereof as a defense to appellant's cause of action. The position of the respondent is briefly stated in paragraph four of the answer as follows: "4. Further answering the said complaint, the defendant alleges that it peaceably acquired possession of the automobile described in the complaint and all equipment and accessories attached or added thereto in good faith, the same being voluntarily surrendered to an agent of the defendant, and by reason of the terms of the said conditional sales contract having been broken when the plaintiff failed to pay the balance of the installment due October 24, 1937, and the installment due January 24, 1938."

The respondent moved to require the appellant to elect the cause of action upon which he was proceeding. The Court ruled that there was but one cause of action stated--one for trespass, which ruling was acquiesced in by appellant.

At the close of appellant's testimony the respondent made a motion for a nonsuit "upon the ground that there is only one inference to be drawn from the testimony; and that is, that if the car in question was taken by the defendant's agents, the same was procured peaceably and in good faith."

The motion was granted, the trial Judge resting his decision on the case of Willis v. Whittle, 82 S.C. 500, 64 S.E. 410. A motion for a new trial was refused and an appeal taken from the action of the trial Judge in granting a nonsuit and refusing a new trial. The discussion of the exceptions of appellant will be treated as if a motion for a new trial was not made, since the same errors are alleged in refusing to grant a new trial as in granting respondent's motion for a nonsuit.

The acts that culminated in the institution of this action occurred on Sunday, February 27, 1938. It is not denied that on this date appellant had defaulted in his payments under the conditional sales contract having paid to respondent, since the execution and delivery of the instrument, only $53.50. The respondent was then entitled to payment in full of the balance remaining due under the contract, resort being had to the acceleration clause therein, or to the possession of the security, namely, the automobile. However, in the event there is a failure to pay the amount due, a mortgagee can secure possession of the security only in a peaceable manner, or in the manner and means provided by law. A general statement on this subject is to be found in the recent case of Childers v. Judson Mills Store Co. et al., S.C., 200 S.E. 770, 773, from which we quote:

"We discuss first the exceptions alleging error in the trial Judge's refusal to grant a nonsuit or directed verdict as against both appellants or either appellant. Repossession of chattels, without institution of legal proceedings, after default in the terms and conditions of Conditional Sales Contracts, has been the subject matter of appeal before this Court in several cases, a few of these cases being *** Willis v. Whittle, 82 S.C. 500, 64 S.E. 410. ***

"The guiding principles of law in instances of this kind are clearly enunciated in Willis v. Whittle, supra, from which we quote:

"'It is well settle that, after condition broken, the legal title to mortgaged chattels vests in the mortgagee. The right of the mortgagee to seize mortgaged chattels after condition broken is a license coupled with an interest, which cannot be revoked by the mortgagor. It is a part of the consideration of the mortgage, and to allow the mortgagor to revoke it would be a...