Willis v. Whittle

• Decision Date: 26 April 1909
• Citation: 64 S.E. 410,82 S.C. 500
• Parties: WILLIS v. WHITTLE et al.
• Court: South Carolina Supreme Court

64 S.E. 410

82 S.C. 500

WILLIS v. WHITTLE et al.

Supreme Court of South Carolina

April 26, 1909

Appeal from Common Pleas Circuit Court of Barnwell County; Geo. E Prince, Judge.

Action by D. F. Willis against J. D. Whittle and another. Judgment for defendants. Plaintiff appeals. Affirmed.

T. R Morgan and Davis & Best, for appellant.

R. C Holman and J. E. Hardey, for respondents.

HYDRICK J.

This is an appeal from a judgment of nonsuit in an action of damages for trespass.

The plaintiff gave the defendant Whittle a chattel mortgage over a horse. The mortgage contained the usual clause, authorizing the mortgagee or his agent to seize and sell the property on default of payment of the debt, and deduct from the proceeds of sale the costs and expenses of seizure, etc. The condition of the mortgage having been broken, the defendant Sprawls was appointed by the defendant Whittle as his agent to seize the horse. Before the seizure, Sprawls went to plaintiff and demanded payment of the debt, and, on plaintiff's failure to pay, told him that he was going to seize the horse. Plaintiff objected to his doing so, without his taking out claim and delivery proceedings. Nevertheless Sprawls went to plaintiff's house during his absence, and told plaintiff's mother, who was living with plaintiff that he had come to seize the horse. She told him that both her sons and her husband were absent from home, and that her son, the plaintiff, had instructed her to object to any one taking the horse, and she did object to his doing so. Notwithstanding her objection and the previous objection of the plaintiff, Sprawls went to the stable, took the horse out, and carried him away. A few days afterwards the plaintiff paid the balance due on the mortgage debt, and $10 in addition, the amount charged by the defendants as the costs and expenses of collection and seizure, whereupon the defendants returned the horse to him. The plaintiff then brought this action to recover $1,000 damages for the alleged trespass in seizing the horse, and compelling him to pay $10, besides the mortgage debt, to regain possession of him. There is no testimony tending to show that the charge of $10 was unreasonable. On the other hand, it showed that the plaintiff voluntarily paid it.

It is well settled that, after condition broken, the legal title to mortgaged chattels vests in the mortgagee. The right of the mortgagee to seize mortgaged chattels...