Eason v. Miller & Kelly , 25 S.C. 555 ( 1886 )

The opinion of the court was delivered by

Mr. Oiiiee Justice Simpson.

James M. Eason, appellant, and his brother, Thomas D. Eason (since dead), doing business as copartners, on April 2, 1866, executed a mortgage to one Hannah Enston of certain property known as “Eason’s Foundry,” situate in Charleston, including the working implements, machinery, and tools therewith connected. The language used in the mortgage with reference to the implements, &c., being: “All that lot * * with all the working implements, machinery, and tools therewith connected, now on said premises.” This mortgage was foreclosed by regular proceedings in .1879. The decree of foreclosure, which was made March 4, 1879, ordered the mortgaged property described in the pleadings as thereinafter set forth to be sold upon certain terms. In this decree the property ordered to be sold was described in the following terms, to wit: “All that lot of land, with all the buildings thereon, including machine and workshops and foundry, with all the working implements, machinery, and tools therewith connected, npw on the premises, situate and being on the north side of Columbus street, * * Charleston * *

In accordance with this decree the property, after due advertisement, was sold by the master on April 24, 1879, defendants, respondents, being the purchasers, to whom a deed was executed on April 24, 1879, by which the property was conveyed to said defendants in the following language: “All that lot, * * workshops and foundry, with all the working implements, machinery, and tools therewith connected, now on said premises,” &c. Shortly after this sale the respondents took possession of the lot and machinery, including certain patterns, the subject of this controversy, whereupon the action below was instituted to recover the value of said “patterns,” the plaintiff alleging that the patterns in question having been constructed and placed on the premises after the execution of the mortgage in 1866, were not embraced in the mortgage and constituted no part of the mortgaged property, and therefore could not have been the subject of the decree of sale in the foreclosure proceedings.

On the part of the defendants it was urged that the terms, “implements, machinery, and tools” embraced “patterns,” and the order of sale having directed that all implements, &c., 11 now on the premises,” be sold, and the deed of the master following the order, having conveyed all implements, &c., now on the -premises, and these patterns being on the premises at the time of the order and of the sale and at the time of the execution of said deed, said patterns passed to the defendants as part of the implements, and especially so because of the fact that the defendants in that action were parties to the foreclosure proceedings, and were also present at the sale and bidders for the property, having at no time interposed objection to any of said proceedings.

The jury rendered a verdict for the defendants. The appeal assigns error to the refusal of the Circuit Judge to charge certain requests of the plaintiff, and to his charge on certain requests of the defendants.

It will be seen from an examination of the replies made by his honor, the Circuit Judge, to the various requests to charge that he laid down the following propositions: First, that nothing passed to Miller & Kelly, the defendants, by the master’s deed, except the property embraced in the mortgage. Second, that all the “tools” and “implements” connected with the plant on the premises at the time of the execution of the mortgage, at the time it was foreclosed, at the time the decree was made, and at the sale, passed under the decree of sale, and went to the purchaser. Third, he declined to charge at the request of the plaintiff, “that such ‘patterns’ as were placed on the premises since August, 1866, when the mortgage was executed, remained the property of the plaintiff, notwithstanding the sale and conveyance.”

The leading legal principles by which the Circuit Judge intended the jury to be governed were: that all tools and implements connected with the foundry, on the premises at the decree of foreclosure and sale, should be regarded as embraced in the mortgage, and consequently as having passed to the purchaser; and whether the patterns in question thus passed, depended upon the further question whether these patterns were tools and implements, which he ruled was a question of fact for the jury; and after defining what was meant by the terms “tools and implements,” he submitted this question, as a question of fact, to the jul7-

The main questions raised in the numerous exceptions are, first, that his honor erred in holding that all the tools and implements on the premises at the decree of foreclosure and sale passed under said sale; and, secondly, that even if this was true, yet that in no event could patterns be regarded as tools and implements, and that his honor erred in not so instructing the jury as matter of law, instead of submitting that question to the jury as a question of fact.

We think the ruling below was correct on both of these questions. Passing by the question, whether the Circuit Judge was entirely correct in ruling that, under all circumstances, such additions as may be made to the original stock of property embraced in a mortgage of the kind before the court, would become embraced in the mortgage and pass at its foreclosure, we think that his honor was fully warranted in the general charge which he made, as applicable to the facts of this case. Here a decree of sale had been obtained in a proceeding to foreclose the mortgage in question, in which decree it was expressly stated that all working implements, machinery, and tools therewith connected and then on the premises, were to be sold. Under this decree, after due advertisement, the property was sold, and a deed in pursuance thereof executed to the defendants, describing the property conveyed as all that lot of land * * including machine and workshop and foundry, with all working implements, machinery, tools therewith connected, and (then) now on the premises. To this proceeding the plaintiff had been made a party, and, as it appears, he was present or was represented at the sale, at no time interposing objection or raising a question as to the sale of such tools and implements as were on the premises at the date of this decree and sale. Under these circumstances we do not see how the Circuit Judge could have reached any other conclusion than that the tools and implements then on the premises were the tools and implements embraced in the mortgage.

The appellant complains that the Circuit Judge failed to construe the decree of foreclosure. We think he did construe it, and that his construction was in accordance with its terms, and that the conduct of the plaintiff estops him from denying that construction. He held that this decree ordered all the tools and implements on the premises at its date to be sold, and, as we have already said, this seems to us to have been the proper interpretation of the decree. He then left it to the jury to determine as matter of fact whether the patterns in contest, admitted to have been on che premises at the date of the decree, were tools and implements, &c. The jury found that they were, and consequently rendered a verdict for the defendants. Certainly, this last question which his honor submitted to the jury ivas a question of fact, pure and simple, one which his honor had no right to decide, and one which he could not have decided upon any principle of law. He defined the meaning of the term tools and implements, but whether patterns fell under this meaning depended upon evidence as to their character, nature, and use, the force and effect of which the jury alone had the right to determine.

We think it will be found upon examination that all of the numerous exceptions are met in the discussion of the questions hereinabove, and therefore it is useless to take them up in detail.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.