10 S.C. 452 | S.C. | 1879
The opinion of the Court was delivered by
This was an action brought in a Trial Justice’s Court to recover the possession of certain personal property. The Trial Justice rendered judgment for the plaintiff, and upon appeal to the Circuit Court his judgment was sustained by that Court.
The-facts of the ease, as we learn them from the statement made by the respondent and conceded by the appellant, were as follows:
Moore cultivated land of Byrum in the year 1875, and at the end of the year, having fallen in debt to him, Byrum refused to permit Moore to remove the portion of the crop to which he was
“Know all men by these presents, That I, C. A. Moore, * * * do hereby give to Joseph Byrum, Jr., a mortgage on all my cotton, corn and wheat that I may raise during the year 1876, to secure the payment of the above note this day given by me; and in default of payment by the 1st of November next, then I authorize the said Byrum to take all the crops raised by me, or any other person he may select so to do.”
The crops mentioned in the foregoing paper were not planted at the time the same was given and were not raised on lands of the appellant. The note not having been paid at maturity, the defendant, Byrum, obtained from the Clerk of the Court of Common Pleas a warrant, under the provisions of the Act entitled “An Act, to secure advances for agricultural purposes,” directed to the defendant, McGukin, as Sheriff, under which he seiz.ed the cotton and other crops of the plaintiff; whereupon this action was commenced to recover possession of the same. At the trial, the defendants abandoned any claim to hold the property under the warrant issued by the Clerk, for the reason, as it would seem from the report of the Trial Justice, that the debt intended to be secured was an antecedent debt and did not arise from advances made at the time or after the execution of the agreement, but claimed that the agreement, although not effectual as an agricultural lien under the statute, was good as a mortgage, and that the taking of the property was justified under the provisions of such paper as a mortgage.
The Trial Justice instructed the jury before whom the case was tried “ that a mortgage on personal property not in being was invalid as a mortgage, and that if they believed from the testimony that the crop was not planted at the time of' the agreement, that then it was wholly invalid as a mortgage ;” and, further, “ that no evidence had been produced the legal effect of which was to estop the plaintiff.”
To all these rulings the defendant excepted. The grounds upon which the Circuit Judge rested his decision are not stated, as he
This, it will be remembered, is an action to recover possession of personal property; it is not an action to recover damages for a trespass in unlawfully seizing property in the possession of the plaintiff. But the action, if maintainable at all, must be maintained upon the ground that the property in question belongs to the plaintiff, or that, as against the defendants, he is entitled to the possession of it. If, therefore, the paper under which the defendants seek to protect themselves can be regarded as having the effect of a mortgage, then, clearly, the plaintiff cannot maintain this action. It is argued, however, that this paper cannot be regarded as a mortgage because at the time it was executed the property intended to be mortgaged had neither an actual or a potential existence, inasmuch as it is admitted that the crops had not then been planted and were not afterwards raised on land of appellant which he then.
This doctrine was fully recognized in the case of Williams vs. Briggs, (11 R. I., 476,) although the controversy there was not between the original parties, but between the mortgagee and an assignee of the mortgagor. It is true that in this case the decision was in favor of the assignee of the mortgagor, but it was placed upon the ground that the action was brought.at law and not in equity, and that the mortgagee had never taken possession of the property mortgaged. The mortgage was upon the tools, fixtures,
We think, too, that the plaintiff is estopped from maintaining this action. In consideration of indulgence on a debt then due, the plaintiff, by the paper in question, executes to the defendant, By-rum, an agreement intended as a mortgage, by which he stipulates, if the debt is not paid at the expiration of the period of indulgence, that Byriun shall be authorized to take the crops to be raised by him into his possession; and although, as against third persons, such agreement might not be held to be a valid mortgage, for the reasons above indicated, and possibly might not be sufficient to authorize the bringing of an action by Byrum against Moore to recover possession of the property mentioned, after default in payment of the debt, (about which, however, we express no opinion,) yet certainly when, upon default in payment of the debt, the property has been taken possession of by Byrum or by his agent, the plaintiff cannot be allowed to recover it back; for to do so he must repudiate
The judgment of the Circuit Court is set aside and a new trial ordered.