London v. Youmans

• Decision Date: 24 June 1889
• Citation: 9 S.E. 775,31 S.C. 147
• Parties: LONDON v. YOUMANS.
• Court: South Carolina Supreme Court

9 S.E. 775

31 S.C. 147

LONDON v. YOUMANS.

Supreme Court of South Carolina

June 24, 1889

Appeal from common pleas circuit court, Hampton county. ALDRICH Judge.

Suit by John R. London against L. D. Youmans to recover possession of certain personal property. Judgment for defendant, and plaintiff appeals.

C. C Tracy, for appellant.

C. J C. Hutson and Z. A. Searson, for respondent.

McIVER J.

This was an action to recover possession of a steam-engine, to which, as we understand from the some what imperfect statement made in the "case," the only defense interposed was that defendant was a purchaser for valuable consideration without notice. The facts out of which the controversy arose are substantially as follows: One James M Richardson, a citizen and resident of Hampton county, being the owner of the engine in question, leased certain premises in Beaufort county from one William Elliott for the term of one year from the 1st of September, 1885, at a monthly rent of $12.50, and placed the engine on said premises for the purpose of carrying on a rice-mill. No part of the rent having been paid, Elliott, on the 1st of September, 1886, demanded payment of the same, when Richardson told him "the engine, boiler, and other machinery there in the store hereinbefore named were sufficient guaranty for his rent, and that same would not be removed until his rent had been paid." Shortly afterwards, however, about the 21st of September, 1886, Elliott, discovering that Richardson had removed some of the machinery above referred to, "took actual possession for rent of the above-named engine and boiler, locked the gate, and placed watchmen in charge. That Richardson had been in possession of the abovenamed engine and boiler several years before, extending out to the world the idea of ownership, and that there was no record to show that plaintiff, or any other person, had any claim or interest in the aforesaid engine and boiler. That Elliott held said engine and boiler under his warrant of distress and levy some months, and, upon failing to get his rents, advertised and sold in accordance with the statute, and bought said engine and boiler for an amount much less than that due for rents," and subsequently sold the same to the defendant, who removed the property to his residence in Hampton county, where it was at the time of the commencement of this action. It appears, however, that the plaintiff held a mortgage on said property, dated 25th August, 1885, but when the debt which it was designed to secure fell due is not stated, though the inference is that such debt became payable some time in 1886, probably on or before the 28th of September of that year, as it is stated that about that time the mortgage was placed in the hands of one Rabb, with instructions to foreclose and sell said engine and boiler, and that about that time these facts were communicated to Elliott by Rabb, who, under the advice of counsel, "in addition to his possession as aforesaid, issued a distress-warrant, and under said warrant levied on said engine and boiler, which latter levy may have been made a few days later than date of record of said mortgage." It also appears that the mortgage in favor of plaintiff was never recorded at all until the 1st of October, 1886, and then it was placed on record in the county of Beaufort instead of the county of Hampton, where the mortgagor resided. The sale under the distress-warrant was not made until the 11th of December, 1886, and in the mean time, though at what precise time, except that it was "between September and December," does not appear, the engine and boiler were sold under the mortgage, and bought in by the plaintiff, though the property was then in the possession of Elliott, and so remained until it was sold to the defendant, who, it is conceded, had no actual notice of plaintiff's mortgage when he bought.

Under an agreed statement of facts, the material portions of which have been copied or stated above, the case was, by consent submitted to the circuit judge, without a jury, who held that two questions were presented: (1) Whether Elliott was a subsequent...