Rentz v. Crosby
| Decision Date | 07 January 1918 |
| Docket Number | 9849. |
| Citation | 94 S.E. 1053,108 S.C. 431 |
| Parties | RENTZ v. CROSBY. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Jasper County; Thomas S Sease, Judge.
Action by H. H. Rentz against Louis Crosby, which was submitted as a controversy without action. From the judgment rendered defendant appeals. Reversed and remanded.
This is an action of claim and delivery commenced on January 23 1915, and was tried before his honor S.W. G. Shipp and a jury at the February term of court, 1916, and resulted in a verdict for the plaintiff, and upon motion of plaintiff the court set the verdict aside. It was tried again in the July term of court, 1916, before his honor James E. Peurifoy and a jury, and resulted in a verdict for the plaintiff. The court on motion of plaintiff, set the verdict aside. This case was next tried before his honor Thomas S. Sease at the November term of court, 1916, on an agreed statement of facts, and resulted in a judgment in favor of the plaintiff, and this appeal is from said judgment. The agreed statement of facts is as follows:
This was an action for claim and delivery of personal property, to wit: One mouse-colored horse mule named Pete (all other property mentioned in the complaint and in the mortgage being either dead or released).
The following is a copy of the note and mortgage under which the plaintiff claims possession.
"28""1914.
On the 1st day of October next I promise to pay to the order of H. H. Rentz two hundred and fifty and no/100 dollars with 8 per cent. interest from date. In case of default in the payment thereof I agree to pay all expenses and attorneys' fees incurred in the collection thereof, the attorneys' fees to be equal to 25 per cent. of the amount due thereon at the time of payment thereof, value received.
Lewis Crosby. [L. S.]
Witness: S. A. Rentz.
State of South Carolina, Colleton County.
Whereas, I am indebted to H. H. Rentz in the sum of two hundred and fifty and no/100 dollars, and have given my promissory note therefor, of even date with these presents, which is hereto annexed, payable on the 1st day of October, A. D. 1914:
Now, in order to secure the payment of said note, and in consideration of the sum of five dollars to me in hand paid, I do hereby grant, bargain, and sell unto the said H. H. Rentz the following goods and chattels, free of any incumbrance, to wit: 1 bay mare 8 years old, named Dawson. 1 mouse-colored horse mule six years old named Pete. 1 roan horse eight years old named Mack. 1 black mare 4 years old named Nellie. (Black mule named Nellie are released from this obligation.) To have and to hold, all and singular, the said goods and chattels, unto the said H. H. Rentz and his assigns forever, the legal title to such crop or crops to vest in the mortgage immediately upon the same coming into esse.
In case of serious injury to said property or any part thereof or the loss or any part thereof by death or otherwise ...... agree to report the same immediately to the said ...... and in case of ...... failure to do so, then and in that event the said ...... shall have the right at its option to treat the entire mortgage debt as due and payable at once and take into ...... possession the property hereby mortgaged, and sell and dispose of the same as hereinafter provided.
Provided, nevertheless, that the said mortgagor shall pay to the said H. H. Rentz the sum hereinabove mentioned when due, then this mortgage is to be void, otherwise to remain in full force and effect. And provided further, that the said mortgagor may retain possession of the said goods and chattels until default be made in the payment of the said note; or the performance of any of the conditions hereof, but if the same is not paid when due, or if before the said note is due, the said mortgagor shall attempt to make way with or remove said goods and chattels, or any part thereof, from the place where they now are, or shall neglect to take good care of the same and maintain it in as good condition as it now is, then, in either event, the said H. H. Rentz or his agents shall have the right, without suit or process, to take possession of the said goods and chattels wherever they may be found, and may sell the same, or so much as may be necessary, at public auction for cash after giving notice by advertisement five days, and shall apply the proceeds of said sale to the discharge of said debt, interest, and expenses, and the attorneys' fees incurred by the said mortgagee in the collection of the debt secured by this mortgage, said attorneys' fees to be equal to 25 per cent. of the whole amount due, and to pay any surplus to the mortgagor and his assigns.
In witness whereof, I, the said mortgagor, do hereunto set my hand and seal this the 28th day of April, A. D. 1914.
Lewis Crosby [L. S.]
Signed, sealed and delivered in the presence of S. A. Rentz."
It is admitted that this mortgage is past due, and that only the sum of $65 has been paid thereon, this payment being made on the day the paper became due. It is admitted, for the purpose of this decision, that the mare described in the mortgage--one bay mare, eight years old, named Dawson--was taken in under the mortgage after it became due, and that she had never been sold, but that she has been converted to the use of the plaintiff. This brings us to the only issue involved in the case.
Should the defendant in the action of claim and delivery for the mule named Pete be allowed credit on his note and mortgage for the full market value of this mare at the time she was taken? If the court decides in the affirmative, then and in that event the plaintiff is to abandon the case and each side is to bear his own costs.
Is the defendant entitled to credit on his note and mortgage to the...
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