Mather-James Co., Inc. v. Wilson , 172 S.C. 387 ( 1934 )

My views, as to the questions involved in this appeal have been fully expressed in my opinion in the case of Fidelity Trust Mortgage Company v. Davis, 158 S.C. 400, 155 S.E., 622, which was concurred in by all the Justices who participated in the decision, in the dissenting opinion of Mr. Justice Bonham, and my opinion, concurring in that opinion, in the case of U.S. Hoffman Machinery Corporation v.Harris, 167 S.C. 443, 166 S.E., 613. Those views are not in accord with the holdings of Mr. Justice Stabler in this case.

The decision in the Hoffman case, while not expressly overruling some of the holdings in the Fidelity case, in effect did overrule them.

It appears now that a majority of the Court in this case, and in the case of General Motors Acceptance Corporationv. Anderson (S.C.), 174 S.E., 268, the decision in which is being filed along with this decision, are of the opinion that the Hoffman case should be followed. This means, as I see it, that important holdings in the Fidelity case are now expressly overruled. The result, too, is to restore the doctrine announced in Simpson v. McDonald, 79 S.C. 277,60 S.E., 674, which was expressly repudiated in the Fidelity case, and which doctrine the Court had indicated should be repudiated in the case of General Motors Acceptance Corporationv. Hanahan, 146 S.C. 257, 143 S.E., 820.

I find, not only from cases coming to this Court since the decision of the Hoffman case, but from discussion among the members of the bar, that there is now much confusion on the subject of distress for rent. The question as to the priorities between a landlord and the holder of a chattel mortgage, or an instrument in the nature of a chattel mortgage, is a very important one, and it frequently arises. The law thereabout should be settled beyond peradventure. This, because the Judges of the higher Courts, as well as the magistrates, who so often have these rights for determination, may know how to decide cases; that the members of the bar may correctly advise their clients, and save them useless litigation; and that the people, generally, especially those who sell personal property, on credit, to tenants, may, in due time, take steps to protect properly their interests.

It is not only important that the decisions of this Court be right, but it is also of full equal importance that the people know what the law is, that they may observe the law. For these reasons, I am concurring in the result of this opinion, with the understanding that from this time forward the Court will follow the principles declared therein.

That there may be no misunderstanding, let it be understood that the effect of this decision, briefly stated, is this: One who sells personal property, or who lends money thereon, to another, who occupies the relationship of tenant, in order to have a lien on the personally, prior to the landlord's right of distress, should, before the personal property is placed upon the leased premises, have his chattel mortgage, or other instrument in the nature of a chattel mortgage, placed on record in the proper office for the recording of such instruments. Otherwise, the seller or lender will run a great risk in the enforcement of his lien and the collection of his debt.

The holdings of the leading opinion seem to me to place an undue burden not only upon the seller or lender, but, oftentimes, upon the tenant as well; but as a majority of the Court are of the opinion that such is the law, I yield to their views. It may not be out of place to suggest again, what was said in the Fidelity case, supra, that the General Assembly might well rewrite the laws relating to distress for rent.

MR. JUSTICE BONHAM concurs.