15 S.C. 88 | S.C. | 1881
The opinion of the court was delivered by
The object of this action was to recover the possession of a certain bay mare found in the possession of the defendant. It seems that one Carter, being indebted to the
The Circuit judge charged the jury, among.other things: First. “ That 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.” Second. That if “ the jury believe that the mare was transferred by Carter to Scruggs with Mr. Flenniken’s permission, all Mr. Flenniken’s right, title and interest in the mare became, upon the consummation of such trade, wholly gone, and he cannot now go upon this defend
'Without undertaking to discuss the various exceptions, seria-tim, we propose to consider and determine what we understand to be the real questions fairly arising upon thq record. Whether it is true as an abstract proposition that the mortgagee of personal property becomes the. absolute owner, in the strict sense of that term, after condition broken, may, doubtless, well be questioned, but there can be no doubt that, after condition broken, the mortgagee may seize and sell the mortgaged property in satisfaction of his debt, and there is as little doubt that, while a public sale is the proper mode, yet, with the consent of the mortgagor, he may sell at private sale, and if he can do this, he, certainly, may authorize the mortgagor himself to sell or otherwise dispose of the mortgaged property free from the lien of the mortgage. For these purposes the mortgagee, after condition broken, has all the rights of the absolute owner, and this .is, manifestly, what the charge of the judge, properly construed, means. Here the undisputed testimony showed that Carter, the mortgagor, was authorized by the plaintiff, the mortgagee, to trade the animal in question, and when such trade was consummated it was unquestionably true, as the jury were instructed, that all .the plaintiff’s right, title and interest in the mare was gone, and, therefore, he could not recover in this action. The only persons who had any interest of any kind in the mare were Carter and Flenniken, and if Carter, by Flenniken’s consent, traded the mare to the defendant, the rights of both Carter and Flenniken would pass to the defendant, and his right would thereby become indisputable.
It is said, however, that Flenniken’s permission to Carter to
The fifth exception does not seem to be relied upon in appellant’s argument here, and, manifestly, cannot be sustained.
The sixth exception has not been urged, and cannot be sustained. There being no conflict in the testimony, and the rights of the parties depending solely upon the application of principles of law applicable to the undisputed facts, there was, certainly, no error in saying to the jury that if they believed the testimony the verdict should be for the defendant.
The judgment of the Circuit Court is affirmed.