14 S.C. 112 | S.C. | 1880
The opinion of the court was delivered by
This was an action to recover the possession of ten barrels of spirits of turpentine and forty-eight barrels of rosin, upon which the defendant had levied under an execution against Ward & Hinson, and which the plaintiffs claimed under a mortgage executed by Ward, one of the members of that firm, to them, prior to the recovery of the judgment upon which such excution was issued.
It did not appear from the original record submitted here whether the turpentine and rosin, the subject of this suit, was the product of a turpentine farm in the possession or under the control of the mortgagor, Ward, at the time the mortgage was executed, or whether it was subsequently bought by him; and the counsel engaged in the cause agreed that the Circuit judge should be requested to amend the “ case ” by a'further statement of the evidence upon this point. In this additional statement, which has been filed with the original record, as a part thereof, the Circuit judge says: “There was no evidence before me as to whether the crude turpehtine, from which the rosin and spirits
There can be no doubt that the rule at law is that it is necessary to the validity of the mortgage that the mortgagor should have a present property, either actual or potential ,in the thing mortgaged, (1 Jones on Mortgages, § 149;) but in equity the rule is different. As is said by Judge Story in Mitchell v. Winslow, 2 Story 630 : “ It seems to me the clear result of all the authorities that wherever the parties, by their contract, intended to create a positive lien or charge, either upon real or personal property, whether then owned by the assignor or not, or if personal property, whether it is then in esse or not, it attaches, in equity, as a lien or charge upon the particular property as soon as the assignor or contractor acquires a title thereto, against the latter and all persons asserting a claim thereto under him, either voluntarily or with notice or in bankruptcy.” This doctrine is fully established by the case of Holroyd v. Marshall, 10 H. L. Cas. 191, and is recognized in McCaffrey v. Woodin, 65 N. Y. 459.
We take it, therefore, that a mortgage on personal property in which the mortgagor has no present interest, either actual or potential, is ineffectual to transfer the legal title to such property
Let us apply these principles to the case under consideration. The language of the mortgage clearly shows an intention to give a lien, not only upon the spirits of turpentine and rosin then in the possession of the mortgagor, but also upon all “ which he may produce or prepare for market or otherwise acquire.” It is certainly broad enough to cover, not only the turpentine and rosin which might be the product of either of the farms mentioned in the mortgage, but also any that the mortgagor might purchase or otherwise acquire. Assuming then that the property in dispute was not the product of either of the farms mentioned in the mortgage but was bought by the mortgagor subsequent to the execution of the mortgage, yet, according to the principles above established, the plaintiffs were entitled to an equitable lien thereon as soon as it was acquired by the mortgagor, though they could not be said to have a legal right thereto until it was •delivered to or taken possession of by them under the mortgage.
The next inquiry is, whether the property in dispute, after it was acquired by the mortgagor, was delivered to or taken possession of by the mortgagees before the rights of third persons had intervened by the levy made by the sheriff. According to the terms of the mortgage the mortgagor bound himself to u consign, send, ship and deliver to the said J. H. Parker & Co., in Charleston, all the crude turpentine, rosin and spirits of turpentine already made by him and to be made by him, or owned or to be owned by him; * * * also, all the crude turpentine, rosin and spirits of turpentine that he shall purchase in his
The plaintiffs must, therefore, rely solely upon their equitable rights, which, as we have seen, they acquired by virtue of the mortgage, even before the property was delivered to or taken possession of by them. The question then is narrowed down to the inquiry whether this equitable lien of 'the plaintiffs can prevail agáinst the execution under which the defendant levied upon the property in dispute. This execution was issued to enforce a judgment recovered in March, 1879, and could have no lien on the property until it was levied, and as the equitable lien of the plaintiffs arose as soon as the property was acquired by the mortgagor, it was, of course, prior, in point of time, to the lien of the execution. The real question, therefore, is whether an equitable lien can prevail against the lien of an execution subsequently acquired. In Dow v. Kerr, Spear’s Eg. 417, Johnson, Ch. says: “ The language of all the books is that an agreement to mortgage is an equitable lien and has precedence of subsequent judgments and all general creditors.” To support this proposition
The only remaining question is whether the plaintiffs can, in this action which seeks relief formerly obtainable only in a court •of law, enforce their equitable right to the possession of the.property in dispute. Prior to the code, this unquestionably, could not have been done. That statute has, however, introduced fundamental changes in the forms of proceedings for the enforcement and protection of rights in the courts of this state. One of the most important of these changes is that found in Section 92: “ The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, .are abolished; and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights .and the redress of private wrongs, which shall be denominated a civil action.” Hence when one comes into court asking for the enforcement or protection of his rights, it does not matter what the nature of his rights may be, whether legal or equitable, he must pursue them by the same form of action. If his allegations and proofs satisfy the court that he is entitled to relief he will obtain it, and the fact that his title to such relief is based upon an equitable rather than a legal right cannot affect or be affected by the form of the action, for, as we have seen, the code provides that there shall be but one form of action for the enforcement and protection of both classes of rights. Such is
The judgment of the Circuit Court is reversed and a new trial is ordered.