117 S.E. 542 | S.C. | 1923
Lead Opinion
May 14, 1923. The opinion of the Court was delivered by "On May 28, 1920, the defendant made to one R.E. Thompson his note for $182.75, payable October 1, 1920 *335 Thompson at once discounted this note with the plaintiff. The defendant borrowed from the plaintiff $126.17 on September 20, 1920, and executed his note and chattel mortgage to secure this indebtedness payable on September 25, 1920, the mortgage covering `one pair of mules.' The mortgage signed by the defendant contained a blanket. The provision making it secure all other debts of defendant to plaintiff, no matter how arising, then owing or thereafter owing. When defendant paid the note executed at the time of the execution of the mortgage he demanded his note and mortgage, and the bank stamped his note `Paid' and delivered it, but refused to deliver the mortgage, claiming that it secured other indebtedness then due to it by the defendant. That dispute originated this action, which is claim and delivery for the mules. The plaintiff gave bond and demanded immediate possession. The defendant made reply bond and maintained possession. The defendant answered, denying that the mortgage secured any other indebtedness than the note for $126.17, and set up a counterclaim for damages for the refusal of the plaintiff to deliver his security upon the same being paid, and for the unlawful seizure of his property. It was not denied that the defendant owed the plaintiff the Thompson note, but it was denied that he knew anything about the bank owing the Thompson note at the time of the execution of the $126.17 note and the chattel mortgage securing it, or at the time of its payment. The cause came on for trial before Judge John S. Wilson and the jury at the summer term, 1922, of the Court of common pleas for Clarendon County, and resulted in a verdict for the plaintiff for the full amount demanded, or for the possession of two mules, described in the verdict. This appeal questions the rulings of his Honor in the trial of the case."
The exceptions are 17 in number; at the hearing exception 7 was abandoned. *336
Exception 1 is overruled. A juror's indebtedness to a bank does not disqualify him for service in a case that the bank is interested in per se.
The Court is willing at all times to give a litigant a fair and impartial trial before an impartial jury, and, if, upon the examination of a juror under oath, the trial Judge is satisfied that he is not an impartial juror, he can excuse him in the cause. The excusing must, in the fitness of things, be left in the exercise of the Judge's discretion, and ordinarily that discretion will not be interfered with.
The exceptions raise the question, under the pleadings, testimony, written and oral, and the verdict in the case: Is the chattel mortgage relied on void for want of certainty in the description of the property covered therein?
The mortgage is of "one pair of mules"; the Sheriff, under claim and delivery, seizes "one pair of mules," and the defendant replevies a pair of mules seized by the Sheriff, and the jury found the mules seized by the Sheriff the mules covered by the mortgage. The plaintiff had the right to show what mules the defendant had at the time the mortgage was taken. The evidence of Thompson and Plowden was competent, and supplied testimony as to the identity of the mules, and in no way attempted to vary the contents of the mortgage. It elucidated on this point the mules intended to be covered by the mortgage, and was competent to go to the jury for their determination. Jones, Chat. Mortg. (2d Ed.), § 53.
These exceptions are overruled.
The exceptions raise the question: "Does the chattel mortgage, although the debt primarily secured thereby has been paid, cover any other indebtedness owing by the maker to the bank, whether specifically mentioned at the execution of the mortgage or not, and can the recitals be disputed or destroyed by parol?" *337
These exceptions are overruled under the plain provisions in the mortgage which was the contract between the parties and the recent decision of this Court, in Lipscomb v.Bank of Tatum, 117 S.E., — , and the admitted competent testimony as to the mules as clarified by evidence as to the mules described in mortgage and verdict of jury is sufficient.
The exceptions asking for reversible error as a charge on facts are overruled, as we fail to see any such error as complained of, and his Honor in his charge left the matter to the jury for their determination, without violating the Constitution preventing a charge on facts.
The other exceptions are overruled. After the jury found for the plaintiff, his Honor had the right either himself to write out form of verdict, or have some one else write it out, and submit it to the jury, and let them retire and consider it, and determine whether that was what they meant to find. In this case that is what was done, and we see no error.
The refusal by his Honor to charge the request asked for by the defendant does not appear to be prejudicial.
All exceptions are overruled, and judgment affirmed.
MR. CHIEF JUSTICE GARY concurs.
MR. JUSTICE COTHRAN: I concur with Mr. Justice Watts in affirming the judgment below, and wish to add the following in justification of that concurrence, in view of the position taken by Mr. Justice Marion in his forcible dissent. That a chattel mortgage may be given to secure an indebtedness past or future, in addition to that specifically mentioned, is settled by the authorities in this state.Davis v. Barwick,
The terms of the mortgage are of as studied comprehensiveness as the English language can supply: *338
"I * * * desire to secure to said bank the payment of said indebtedness and of any and all other sums of money which I * * * may now or hereinafter owe unto the said bank (my * * * intention being to make this a permanent and continuing security for all my * * * past, present and future liabilities and indebtedness of any nature and description in favor of said bank, no matter how the same may arise or may have arisen * * *)."
While generally speaking it is true that "a mortgage is security only for such demands as are in the contemplation of the parties at the time," I do not see how this principle can be applied to a case where the indebtedness is described with the utmost particularity, without shattering the salutary rule against the admission of parol evidence to alter a written instrument. The matter of "contemplation" is absolutely concluded by the terms of the instrument.
In the case of Davis v. Barwick,
"The balance, if any, brought over from 1908, was a sum of money due and owing during the year 1909 and therefore fell under the express terms of the mortgage. The Court is not at liberty to limit the very comprehensive words, `further sums of money due and owing' during the current year, to the much more restricted meaning of sums of money advanced during the year 1909."
I think that there is as little ground to limit the very comprehensive words in the present mortgage to debts due to the bank of which the mortgagor was informed. It may be remarked in passing that there was evidence tending to show that the note was discounted at the bank with the knowledge and consent of the defendant. If this be true *339 the case falls directly under Davis v. Barwick. The mortgagor, however, denied this fact; but, whether true or not, the debt was clearly covered by the terms of the mortgage, and, to hold that the mortgagor must have known of the transfer at the time he gave the mortgage, is to add a condition which does not appear.
The case of Poulter v. Hardware Co. (Tex.Civ.App.)
This case is distinguished in a later case from the same Court. Coleman Bank v. Cathey,
"But it is contended that, inasmuch as that note was not made payable primarily to the bank, but to J.W. Quinn, it was not intended by the parties that it should be secured by the mortgage. The language of the mortgage as quoted above is broad enough to include the claim of the bank upon the note in question, and we see no reason why it should not be given that effect."
The Court then distinguishes the Poulter Case, as above indicated.
In Nix v. Hopper,
This Court, in a law case, has no authority to relieve a party from his obligations under the plain terms of a contract valid under the law. The immunity of the debtor, in cases like the present, can be secured only by refraining from entering into such obligations or by legislative action rendering such provisions nonenforceable. There is another side to this question: The bank has some rights as well as the debtor. It may be assumed that the security afforded the past debt was a moving consideration to making the loan. If it was a valid provision the bank has a right to enforce it.
The bank is not seeking an unconscionable advantage over the debtor. All that it wants is the payment of an honest debt which is not disputed. The obligation of the mortgagor to pay all that he owes, secured and unsecured, is not a novel proposition. Even where there is no agreement to that effect, if the mortgagor seeks redemption he muse pay all that is due by him.
MR. JUSTICE WATTS concurs herein.
Dissenting Opinion
I think the appellant's fourth and sixth exceptions should be sustained.
"It is a well-recognized rule of construction that a mortgage is security only for such demands or indebtedness as are in the contemplation of the parties at the time." 11 C. J., 494; § 157.
While the "blanket clause" of a chattel mortgage is valid (Behrmann v. Brown [S.C.]
In the case at bar the defendant gave the bank a mortgage to secure a note for $126.17. Unknown to defendant the bank at the time of taking this mortgage, into which was written this blanket clause, had acquired an unsecured note given by defendant to a third party, and, when defendant paid the $126.17 mortgage note, the bank proceeded to foreclose the mortgage for the purpose of applying the proceeds to the payment of the note defendant had given to the third party as an unsecured obligation. A construction of the blanket provision of a chattel mortgage that would permit a mortgagee who holds the mortgage to go out and buy up unsecured claims against the mortgagor, and, after the mortgagor has paid the debt the mortgage was really intended to secure, spring these other claims on him, and enforce the mortgage to secure payment, is to sanction a use of this blanket clause that would make of it an instrument of oppression and fraud. In the case at bar, for example, the bank taking a mortgage on mules worth, say $600 to secure $126 could have gone out and bought unsecured store accounts or fertilizer notes of the defendant to the face value of $600 for perhaps 10c. on the dollar, and, after defendant had paid the $126, sell the mules under the mortgage for $600 to apply on the $600 of old debts that had cost the bank only $60. If the debts that were fairly and reasonably within the contemplation of the parties may not be inquired into and ascertained, it is further apparent that such a mortgage could readily be made a means of fraud on creditors. An insolvent debtor who owes $2,000, and who has given a mortgage on all his property, worth $1,000 to secure a debt of $200, could under the construction adopted by the circuit Judge in the case at bar, select the creditors he wished to prefer and have their accounts assigned to the mortgagee, paid in full under the blanket clause, and let the other creditors get nothing. *342 How could a subsequent creditor, with constructive notice of this mortgage for $200 into which was written a blanket clause susceptible of the construction here authorized, ever ascertain by the most diligent inquiry what debts would be brought under cover of the mortgage?
"Where a mortgage is conditioned as security, in addition to the principal sum named, `for all further advances to the mortgagor by the mortgagee, and other indebtedness to the mortgagor by the mortgagee that may exist, arise, or be contracted before the satisfaction hereof,' a subsequent note, indorsed by the mortgagor and by him transferred to the mortgagee, is not secured by the terms of the mortgage.Moran v. Gardenmeyer,
See 11 C.J., 495, footnote.
For the reasons indicated, I dissent.
MR. JUSTICE FRASER concurs in this dissent.
