Opinion
12588
February 12, 1929.
Before SEASE, J., Cherokee, August, 1927. Affirmed.
Action by the Carroll Byers Company against the Gaffney Manufacturing Company. Decree for plaintiff, and defendant appeals.
Decree of Judge Sease in the Court below:
"This action was commenced by the service of summons and complaint, bond, etc., in claim and delivery by the plaintiff upon the defendant. Prior to serving the defendant, demand was made by plaintiff's attorneys for the cotton in question, and demand was also made by the sheriff for said cotton, or the value thereof, before service of the summons, and complaint, bond, etc.
"Service was made on January 22, 1927, and an answer was filed by Butler Hall, attorneys for the defendant.
"By consent of the parties, Donald Huggin, Esq., was appointed special referee to take the testimony and report his conclusions of law and facts with leave to report any special matter. Whereupon a reference was held by said referee on May 4, 1927. From the decision of the referee, both the plaintiff and the defendant filed exceptions, and the matter was heard by me on appeal at the July term of Court for Cherokee County, S.C.
"The plaintiff holds a note and mortgage dated April 1, 1926, and maturing October 15, 1926, being over `All crops — to be raised by or for us on lands belonging to Mr. H.C. Hicks, and Mrs. H.C. Hicks, in Cherokee County, S.C.'
"From the facts brought out in the testimony, it appears that fifteen bales of cotton were produced by the mortgagors, and that two bales of cotton, to wit, Nos. 3522 and 4921, were grown on the Burgess lands; the remaining thirteen bales of cotton were grown on the lands of Mr. and Mrs. H.C. Hicks, as described in the mortgage. I find that the plaintiff herein had no lien on the two bales of cotton raised on the Burgess place, as against the defendant, because the description in the mortgage did not cover the cotton raised on the Burgess lands, and was no notice to the defendant. As between the plaintiff and Mrs. H.C. Hicks, the two bales of cotton raised on the Burgess place were covered by the mortgage. The defendant took a good title to these two bales, without notice, as the Burgess place was not mentioned and certainly not described.
"There was one bale of cotton sold to the Hamrick Mill, and the credit of $60 on Mrs. Hicks' indebtedness was derived from this source, and cannot be claimed by the defendant as coming from the sale of the remaining twelve bales.
"The remaining twelve bales of cotton produced by Mrs. H.C. Hicks, on her lands, and described in the mortgage, were purchased by the defendant for $724.08, without the knowledge or consent of the plaintiff, whose mortgage was properly recorded, thereby giving notice to the world. The plaintiff gave no consent for the cotton to be sold.
"I find that the Merchants' Planters' National Bank had a prior mortgage over the crops of the mortgagor (Mrs. H.C. Hicks), and the sum of $148.96 was properly applied to that lien, and the defendant is not required to account for this sum. After deducting this item of $148.96, from $724.08, the sale price of the twelve bales, there is a balance of $575.12, and from this amount is to be deducted two credits totaling $175, which amount was paid by the mortgagor to the plaintiff prior to the commencement of this action. This leaves a balance of $400.12 due the plaintiff by the defendant.
"The plaintiff is entitled to interest at the rate of 7 percent. per annum from January 22, 1927, on the sum of $400.12, said interest amounting to $15.98, to date, making a total of $416.10.
"I find that no attorney's fees can be allowed, because it is not a suit on the note and mortgage.
"I find that the plaintiff is entitled to judgment against the defendant, Gaffney Manufacturing Company, in the sum of $416.10; or the possession of the cotton, twelve bales, to wit, Nos. 3523, 3767, 3882, 3933, 4045, 4102, 4739, 4146, 4986, 565, 605, 683; and it is so decreed."
Messrs. Butler Hall, for appellant, cite: Consent to sale by mortgagee waives lien and cannot follow the property into hands of a purchaser: 45 S.C. 512; 38 S.C. 507; 111 S.C. 507. Where one of two innocent persons must suffer loss, it should fall on him by whose conduct the loss was occasioned: 95 S.C. 328; 138 S.C. 354; Pom. Eq. Jur. 2d, Sec. 803.
Messrs. Fort Jefferies, for respondent, cite: Mortgagee has right to accept part payment, or to indulge mortgagors, after condition broken without waiver of any rights under mortgage: Sec. 5631, Code. "Custom": 50 S.E., 850; 138 N.E., 456.
February 12, 1929. The opinion of the Court was delivered by
This Court is entirely satisfied with the reasoning and conclusions of the Circuit Judge, and the decree is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICE BLEASE, STABLER and CARTER concur.