Rose v. Harllee

• Decision Date: 08 August 1904
• Citation: 48 S.E. 541,69 S.C. 523
• Parties: ROSE v. HARLLEE.
• Court: South Carolina Supreme Court

48 S.E. 541

69 S.C. 523

ROSE v. HARLLEE.

Supreme Court of South Carolina

August 8, 1904

Appeal from Common Pleas Circuit Court of Florence County; Gage Judge.

Action by H. S. Rose against H. T. Harllee. Verdict for plaintiff. From an order granting a new trial, he appeals. Affirmed.

Willcox & Willcox and J. P. Neil, for appellant. S.W. G. Shipp, W. F Clayton, and George Galletly, for respondent.

WOODS J.

The plaintiff and the defendant entered into a written agreement on March 18, 1902, which provided for advancement by plaintiff of agricultural supplies for the year 1902, and an agricultural lien on defendant's crop to secure them. The paper contained also the following mortgage clause: "The party of the second part, in consideration of said agricultural advances, and in consideration of advances in merchandise or supplies of any kind whatsoever which may be made by the party of the first part, and as security for the payment on the 1st day of October, 1902, of any amounts which the party of the second part may on said date for any cause be owing the party of the first part, and to secure the payment at an earlier date for such amounts as may be then owing, in case the party of the first part shall deem his security insufficient or in danger, and to secure the payment of any amounts which the party of the second part shall be owing the party of the first part until the cancellation of this agreement, does hereby mortgage, bargain, pledge, sell and convey to the party of the first part the following personal property, to wit: one red and white, no horn, ox, no name; one red and white horned ox, no name; one white and black horned ox, no name. Above stock is my own, and there is no other claim against them. Also, all crops to be raised on the plantation above described during the current year, all of which the party of the second part promises to deliver on demand of the party of the first part; said mortgage to be void only on payment of all amounts herein mentioned to the party of the first part."

On August 15, 1902, the plaintiff brought this action to recover the property described in the contract, including the crops; the complaint being in the ordinary form used in claim and delivery. The undertaking required by law was given, and the property delivered to the plaintiff. The answer denied the right of the plaintiff to possession of the property, stated the value to be $2,500, instead of $1,000, as stated by plaintiff, and alleged the taking and detention of the plaintiff to be "wrongful, willful, wanton, and in gross violation of defendant's legal rights," to his damage $5,000. Judgment was demanded for $5,000 as such damages, in addition to the $2,500 value of the property. At the trial the plaintiff claimed the right to seize the crop under his mortgage as above quoted, because he deemed "his security insufficient or in danger."

Among other defenses, the defendant took the position that the mortgage was void as to the crops because they were described in print, and not writing or typewriting. The presiding judge charged the jury if they found the description to be printed and not in writing or typewriting, the mortgage would be absolutely void. This instruction was based on section 3002 of the Civil Code of 1902, which is as follows: "No chattel mortgage shall be valid or good to convey any interest or right whatever to the mortgagee, unless the property mortgaged shall be described in writing or typewriting, but not printing, on the face of the mortgage, nor shall any prosecution lie for selling any property under the lien of such mortgage, unless the property mortgaged shall be described in writing or typewriting, but not printing, on the face of such mortgage." There was no evidence of the description of the crop being printed, except the appearance of the paper itself. The jury found a verdict for the plaintiff, fixing the value of the property at $1,072. A new trial was ordered, on the ground that the verdict of the jury was in violation of the instruction of the court. In his decree granting the new trial, the circuit judge says: "It is manifest from a casual inspection of the paper that it does not comply with the terms of the act." The plaintiff, by his appeal from this order, submits it should not have been granted for three reasons: First. Because there was no evidence that the description of the crops in the mortgage was printed, and not written or typewritten. Second. Because the act making the mortgage invalid ""unless the property mortgaged shall be described in writing or typewriting, but not printing, on the face of the mortgage," should have been held to be ""unconstitutional, null, and void, as being in contravention of the fourteenth amendment of the Federal Constitution and of section 5, art. 1, of the Constitution of 1895 of the...