42 S.C. 121 | S.C. | 1894
The opinion of the court was delivered by
It appears that the plaintiff had given a lien on his crop for the year 1891 to the defendants to secure advances, and some time in the latter part of that year an arrangement was entered into between the parties whereby the defendants were to take up a mortgage then past due, held by one Mitchell, on a mare and colt belonging to plaintiff, with the understanding that if the plaintiff would gather his crops and apply the same to the lien held by defendants, they would indulge him for the balance due on the Mitchell mortgage until the fall of 1892. Soon after the Mitchell mortgage was transferred to defendants, they, alleging that plaintiff was neglecting to gather his crop and permitting the same bo waste in the field, seized the crop under a warrant to enforce the lien, and about the same time obtained possession of the mare and colt covered by the Mitchell mortgage, and sold the same under said mortgage. Exactly how the defendants obtained possession of this
Thereupon this action was brought to recover the possession of the mare and colt, plaintiff insisting that under the arrangement made with the defendants at the time they obtained an assignment of the Mitchell mortgage, the plaintiff was entitled to retain the possession of the animals until the fall of 1892. The defendants, on the other hand, insisted that by reason of the plaintiff’s breach of the agreement to gather his crops and apply the same to the debt secured by the agricultural lien, they were not bound to wait until the fall of 1892, before enforcing the payment of the balance due on the Mitchell mortgage, but were justified in proceeding immediately to do as they had done. The defendants in their answer set up a counter-claim for the balance due them under the agricultural lien as well as a balance due them on a mortgage given by plaintiff to one Floyd, which had been assigned to defendants. To this counter-claim the plaintiff demurred, and his demurrer was sustained and the counter-claim was stricken out. The testimony adduced, which is set out' in the “Case,” was conflicting, especially as to who first violated the agreement mentioned above, and in the course of the testimony the defendants, against the objection of the plaintiff, were allowed to prove what was the total amount due to them by the plaintiff, the Circuit Judge ruling that such-testimony was admissible in mitigation of damages.
The Circuit Judge, in the outset of his charge, seems to have treated the case as if it was an action by the plaintiff to recover damages from the defendants for their violation of the agreement, not to foreclose their mortgage on the mare and colt until the fall of 1892; whereas, the true nature of the action seems to have been to recover possession of the mare and colt, together with damages for the alleged unlawful seizure and detention thereof. When counsel for plaintiff called the attention of the court to this miscouception of the nature of the action, and offered to allow the case to be considered as an ac
The fourth and fifth grounds of appeal were not pressed in the argument here, and need not be considered, especially as we are satisfied that they could not be sustained.
This provision of the Code has been applied in several cases, but none of them appear to be like the present. In Robbins v. Slattery, decided as far back as November Term, 1878, and reported in a note to Lockhart v. Little, 30 S. C., at page 328, the property in dispute had been taken from the possession of the
It will thus be seen that the question here presented has never yet been passed upon by this court. For in the present case the property in dispute was not taken from the possession of the defendants, and there was no necessity, therefore, for them to demand a return thereof, and no necessity for an alternative verdict. It seems to us that the real object of the section of the Code under which this question arises is of a twofold character — first, to protect the rights of the true owner to regain possession of his property in specie, if practicable; second, to save the party who may be innocently, but illegally, in the
To avoid any misapprehension, we desire to add that we are not to be understood as expressing or even intimating any opinion upon the question, which lies at the very foundation of plaintiff’s claim, to wit: whether, under the agreement between the parties, the defendants were bound to wait until the fall of 1892,' before proceeding to enforce the Mitchell mortgage. That is a question of fact for the jury,- which must be submitted to them under proper instructions; and the only reason why we grant a new trial is, that there is reason to apprehend that, under the instructions given at the former trial, the jury may have been misled to the prejudice of the plaintiff.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.