Malcolm Mercantile Co v. Britt

• Decision Date: 24 November 1915
• Docket Number: (No. 9241.)
• Citation: 87 S.E. 143,102 S.C. 499
• Parties: MALCOLM MERCANTILE CO. v. BRITT.
• Court: South Carolina Supreme Court

87 S.E. 143

102 S.C. 499

MALCOLM MERCANTILE CO.

v.BRITT.

(No. 9241.)

Supreme Court of South Carolina.

Nov. 24, 1915.

Gary, C. J., dissenting.

Appeal from Common Pleas Circuit Court of Dillon County; Ernest Moore, Judge.

Action by the Malcolm Mercantile Company against John D. Britt. From an order refusing a motion to set aside an order of arrest, defendant appeals. Reversed.

Joe P. Lane, of Dillon, for appellant.

Gibson & Muller, of Dillon, for respondent

WATTS, J. I cannot concur in the opinion of Chief Justice GARY.

The principle laid down by the circuit judge is not applicable either to the allegations of the complaint or proof in the case. There is no allegation or proof that the bales of cotton are of same weight or grade, and each bale would sell at the same price, or that they can be divided in kind between the parties according to their respective interest therein, and, if these are not of the same weight, grade, and kind, the sheriff cannot divide them and take only those that belong to the plaintiff. The action for claim and delivery should not have been brought, but the plaintiff's remedy was an action on the equity side of the court. He had a plain and ample remedy there. He should have asked for an accounting, and, if necessary, for an injunction and receiver. To hold otherwise would overrule Neal v. Suber, 56 S. C. 302, 33 S. E. 463, and Mayfield v. Bessin-ger, 87 S. C. 370, 69 S. E. 673.

Britt was the owner of the entire crop on the premises, and he had released, not his interest in them, but had released what interest he had in the shares of his croppers only, and the plaintiff had a lien on the part of the cotton which was due the laborers for their hire in making the crop, and Britt was entitled to exclusive possession of the same until division had been made. A mere laborer for a share of the crop has no title to any part of said crop until after division is made. The plaintiff is not entitled to the exclusive possession of property sued for, and only in such cases can an action for claim and delivery be maintained. Clerks v. Knights, 70 S. C. 547, 50 S. E. 206. The plaintiff's lien is on the share of the cropper, and a share cropper is not the owner of any particular part of the crop. The landlord owns the whole of the crop, and is entitled to the exclusive possession of the same until after a division is made.

While it may prove a hardship in this case, it would be more damaging to affirm the judgment of the circuit court, as by so doing it would overrule several well-considered cases, and the judgment should be reversed.

Judgment reversed.

HYDRICK, GAGE, and FRASER, JJ., concur.

GARY, C. J. (dissenting). This is an appeal from an order refusing a motion to set aside an order of arrest issued by the clerk of the court against the defendant, upon affidavits and a verified complaint.

The complaint alleges that the defendant employed certain tenants to work the crops on lands in his possession during the year 1914 on shares; that, in order to secure advances, the tenants executed a mortgage in favor of the plaintiff on their shares of the crops, upon which mortgage the defendant released all his right, title, and interest in and to the shares of the tenants; that the defendant, instead of permitting the tenants to deliver to the plaintiff their shares, took possession of all the crops, and wrongfully converted them to his own use, and upon demand refused to deliver to the plaintiff the shares of which he is owner, and to the immediate possession of which he is entitled. The prayer of the complaint is for a return of the property in dispute, or for the sum of $650, the value thereof, in case a return cannot be had.

The affidavit upon which the order of arrest was issued alleges that the said crops were fraudulently concealed, removed, or disposed of, so that they cannot be found by the sheriff, and that said acts were done with intent to deprive the plaintiff of the benefit thereof.

The first question that will be considered is whether there was error on the part of his honor the presiding judge in overruling the following ground upon which the motion was made to vacate the order of arrest, to wit: That the complaint does not state facts sufficient to constitute a cause of action against the defendant, under subdivision 2, § 230, of the Code, as it does not allege fraud.

Section 230 of the Code provides that:

"The defendant may be arrested, as hereinafter prescribed, in the following cases: * * * 2. In an action to recover the possession of personal property fraudulently detained, or where the property, or any part thereof, has been fraudulently concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff or constable, and with intent that it should not be so found or taken, or with intent to deprive the plaintiff of the benefit thereof."

Section 232 is as follows:

"The order may be made where it shall appear to the proper officer by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and that the case, from the facts stated, is one of those mentioned in section 230."

His honor the circuit judge states in his order that the defendant conceded that the affidavits contained sufficient grounds for the arrest, but that the order should be set aside on the ground that the complaint does not allege fraud.

The question under consideration Is concluded by the case of Bank v. Jennings, 38 S. C. 372, 17 S. E. 16, in which the court uses the following language in discussing the section of the Code now numbered 230, to wit:

"The inquiry here is whether the facts stated in the affidavits relied on are sufficient to show that the appellant in this case has fraudulently misapplied money received by him in a fiduciary capacity, or has been guilty of fraud in incurring the obligation for which the action is brought. For this purpose we must look alone to the affidavits, as the complaint does not appear to have been verified, and cannot, therefore, be considered as an affidavit, and can only be looked to for the purpose of ascertaining whether an action has been commenced and what is the nature and object of such action."

The next question that will be considered, is whether there was error in refusing the motion to set aside the order of arrest, based upon the ground that the action is not one in which claim and delivery proceedings will lie, for the reason...