Wilkes v. Southern Ry. Co
| Decision Date | 22 March 1910 |
| Citation | 85 S.C. 346,67 S.E. 292 |
| Parties | WILKES v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
1. Chattel Mortgages (§§ 162, 172, 173, 177*)—Rights or Mortgagee After Condition Broken—Recovery of Damages.
After condition broken, the legal title to mortgaged chattels vests in the mortgagee, who may maintain an action to recover possession from the mortgagor, or from any other person in whose hands he finds them, and may also recover of a third person damages for their conversion, injury, or destruction.
[Ed. Note.—For other. eases, see Chattel Mortgages, Cent. Dig. §§ 286, 306, 336; Dec. Dig. §§ 162, 172, 173, 177.*]
2. Chattel Mortgases (§ 177*)—Rights of Mortgagor After Condition Broken.
While the legal title of the chattel mortgagee and his right of possession after condition broken are absolute in him to the extent that he may preserve and protect his rights under the mortgage or he may waive them, yet, as between a third person and the mortgagor, the latter has the right of possession, and such special property in the mortgaged chattels that he may maintain such actions as are necessary to protect his possession and his special right.
[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. § 336; Dec. Dig. § 177.*J
3. Bailment (§ 21*)—Rights of Bailee.
A mere bailee has such special property in the thing bailed that he may maintain such action as is necessary to protect it against wrongdoers.
[Ed. Note.—For other cases, see Bailment, Cent. Dig. §§ 91-102; Dec. Dig. § 21.*]
4. Chattel Mortgages (§ 177*)—Injury to Mortgaged Property—Actions.
While the right of a chattel mortgagee after condition broken to bring an action against a third person for injury to the mortgaged property is superior to that of the mortgagor, the latter may bring the action by the consent, express or implied, of the mortgagee, or against his consent after demand and his refusal to bring it.
[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. § 336; Dec Dig. § 177.*]
5. Abatement and Revival (§ 9*) — Judgment (§ 685*)—Identity of Parties—Mortgagor and Mortgagee.
The pendency of an action by a chattel mortgagee for injury to the mortgaged property is a good plea in abatement of an action by the mortgagor, and a judgment in such action is a good plea in bar of an action by the mortgagor for the same cause.
[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 73-85; Dec. Dig. § 9;* Judgment, Cent. Dig. § 1208; Dec. Dig. § 685.*]
6. Chattel Mortgages (§ 177*)—Injury to Mortgaged Property—Action by Mortgagor.
Defendant, in an action by a chattel mortgagor for injury to the property, can protect himself, either by requiring plaintiff to prove the consent of the mortgagee to the bringing of the action, or by having the mortgagee brought into court under the provisions of Code Civ. Proc. 1902, § 143.
[Ed. Note.—For other cases, see Chattel Mortgages, Cent. Dig. § 340; Dec. Dig. § 177.*]
Appeal from Common Pleas Circuit Court of Fairfield County; J. C Klugh, Judge.
Action by Jas. Y. Wilkes against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
McCants & McCants, for appellant.
Rags-dale & Dixon, for respondent.
HYDRICK, J. Plaintiff recovered damages for injury to a mule, which was struck by one of defendant's trains. On cross-examination he testified: "Mr. Ragsdale has small account due on this mule under mortgage." The testimony further showed that this Mr. Ragsdale was a witness for the plaintiff at the trial, and had written a letter to the defendant's stock claim agent for the plaintiff, which was signed by the plaintiff, demanding payment to the plaintiff for the damage to the mule. The sole question raised by the exceptions which this court can consider is:
Did plaintiff have such property rights in the mule that he could maintain the action? We think this question must be answered in the affirmative. It is well settled in this state that, after condition broken, the legal title to mortgaged chattels vests in the mortgagee. He may maintain an action to recover possession thereof, even from the mortgagor, or from any other person in whose hands he may find them. Martin v. Jenkins, 51 S. C. 42, 27 S. E. 947, and cases cited. He may also recover of a third person damages for their conversion, injury, or destruction. Wylie v. Railroad, 48 S. C. 405, 26 S. E. 676. The language of some of the cases is that his title is "absolute." But on examination these expressions will be found to be mere dicta. The cases above cited, and those therein referred to, agree that his title and right of possession are subject to the right of the mortgagor, or his vendee, or a subsequent mortgagee, to redeem before sale, or, after sale, to an accounting in equity for the surplus, if any, after payment of the mortgage debt and interest and the costs and expenses of seizure and sale. It cannot, therefore, be said that the title of the mortgagee, after condition broken, is absolute, in the strict legal sense of that term. In Flenniken v. Scruggs, 15 S. C. 91, the circuit judge charged the jury: "When there is a breach of the condition of a mortgage of personal property, the article mortgaged becomes the absolute property of the mortgagee; the possession of the mortgagor being thence merely permissive." Responding to an exception to this charge, the court said: ...
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