Tucker v. Hudgens

• Decision Date: 30 July 1925
• Docket Number: 11813.
• Citation: 129 S.E. 77,132 S.C. 374
• Parties: TUCKER v. HUDGENS.
• Court: South Carolina Supreme Court

129 S.E. 77

132 S.C. 374

TUCKER v. HUDGENS.

No. 11813.

Supreme Court of South Carolina

July 30, 1925

Appeal from Common Pleas Circuit Court of Anderson County; A. C Todd, Special Judge.

Action by W. H. Tucker against W. K. Hudgens. Verdict for defendant and plaintiff appeals. Affirmed.

Greene & Earle and A. H. Dagnall, all of Anderson, for appellant.

Bonham Price & Poag, of Greenville, and Quattlebaum & Watkins, of Anderson, for respondent.

COTHRAN J.

Action in claim and delivery for 17 bales of cotton, in possession of the defendant, which the plaintiff claims are covered by a chattel mortgage given to him by one A. M. Gaillard. Verdict for the defendant; plaintiff appeals.

The undisputed facts are as follows:

On February 26, 1921, A. M. Gaillard executed and delivered to the plaintiff, W. H. Tucker, a chattel mortgage upon 60 bales of cotton, then in his possession, to secure the payment of a note for $19,850, given by Gaillard to Tucker on December 2 1919, and payable one day after date. This chattel mortgage was not recorded until September 22, 1922, 19 months after its execution.

In March, 1921, Gaillard delivered to the defendant, W. K. Hudgens, 17 bales, covered by the Tucker mortgage, which were placed in the warehouse of Hudgens. Hudgens claims that this cotton was pledged to him by Gaillard, pursuant to an agreement between them, whereby Gaillard was to pledge to Hudgens 100 bales to secure the payment of a past-due note for $4,688.70, dated August 12, 1920, and payable November 1, 1920, which Gaillard owed to Hudgens for fertilizers furnished during the year 1920. As additional consideration for said pledge, Hudgens agreed to grant "an extension of time for the payment of said fertilizer note," "to carry the fertilizer note on," and to furnish Gaillard with fertilizers and supplies for the year 1921.

It appears that, Gaillard having delivered in pledge only 17 of the 100 bales promised. Hudgens declined to make any advances in fertilizers or supplies, during the year 1921, as contemplated in their agreement, or to extend credit of any kind after the 17 bales were delivered, and claims to hold the 17 bales as security solely for the $4,688.70 note due for fertilizers furnished in 1920.

The plaintiff's sole exception is as follows:

"Because his honor, the presiding judge, erred in charging defendant's fourth request to charge, which is as follows: 'The jury are instructed that, if they find that one A. M. Gaillard executed to W. H. Tucker, the plaintiff, a chattel mortgage covering a certain lot of cotton, and if the jury further find that such mortgage was not recorded within 10 days after the time of its delivery or execution, and if the jury further find that after such delivery or execution, the said A. M. Gaillard deposited a part of the cotton covered by such mortgage with defendant as a pledge or collateral to secure a debt of the said A. M. Gaillard to the defendant, and if the jury further find that such delivery or deposit was made to the defendant before such mortgage was recorded in the office of the clerk of court, and if the jury further find that the defendant, at the time of such delivery or deposit of such cotton, had no notice or knowledge of the mortgage given by the said A. M. Gaillard to the plaintiff, then the defendant would have the right of title, and possession of such cotton, and the plaintiff cannot recover the same from the defendant, and the jury must find for the defendant.' "

The specifications of error are:

"(a) Because one person receiving from another personal property as a pledge to secure past-due indebtedness after said property had been mortgaged to a third person by pledgor does not constitute a pledgee a subsequent creditor or purchaser for value as contemplated by the recording acts of the state of South Carolina, and does not give to the pledgee any rights in or to said personal property that would defeat or affect in any way the lien of the prior chattel mortgage, although the same be unrecorded.

(b) Because said charge failed to take into account the requirements of the statute law of South Carolina, whereby such a pledge as that mentioned in the charge must be reduced to writing and recorded within 10 days before it could defeat or affect a chattel mortgage previously executed but subsequently recorded without notice of the existence of the pledge."

The positions of the plaintiff are clearly defined in the specifications above set forth. His contention, in the first place, is that Hudgens, having taken the pledge of the 17 bales as security for a past-due obligation, cannot be considered a subsequent creditor for value, without notice, and entitled to the protection of section 5312, vol. 3, Code 1922, relating to the recording of instruments in writing. It is quite true that under the circumstances Hudgens cannot be so considered. Carroll v. Cash Mills, 125 S.C. 332, 118 S.E. 290; Lipscomb Russell Co. v. Hobbs-Henderson Co., 125 S.C. 214, 118 S.E. 303; Carraway v. Carraway, 27 S.C. 576, 5 S.E. 157; Summers v. Brice, 36 S.C. 204, 15 S.E. 374; Heyward v. Zeigler, 106 S.C. 425, 91 S.E. 298; Pittman v. Raysor, 49 S.C. 469, 27 S.E. 475.

It is equally true that the pledge was supported by a valuable consideration. In addition to the contention of the defendant that a part of the consideration was the extension of time upon the fertilizer note, upon which we attach little weight in view of the failure of Gaillard to pledge the number of bales agreed upon, and Hudgens' refusal thereafter to furnish supplies and fertilizers or to regard the agreement for extension as binding, the pledge needed...