Mercantile Company v. Britt

This is an appeal from an order refusing a motion to set aside an order of arrest, issued by the clerk of Court against the defendant, upon affidavits and a verified complaint.

The complaint alleges, that the defendant employed certain tenants, to work the crops on lands in his possession during the year 1914, on shares; that in order to secure advances, the tenants executed a mortgage in favor of the plaintiff, on their shares of the crops, upon which mortgage the defendant released all his right, title, and interest, in and to the shares of the tenants; that the defendant, instead of permitting the tenants to deliver to the plaintiff their shares, took possession of all the crops, and wrongfully converted them to his own use, and upon demand refused to deliver to the plaintiff the shares of which he is owner, and to the immediate possession of which he is entitled.

The prayer of the complaint is for a return of the property in dispute or for the sum of six hundred and fifty dollars, the value thereof, in case a return can not be had.

The affidavit upon which the order of arrest was issued, alleges that the said crops were fraudulently concealed, removed or disposed of, so that they can not be found by the sheriff, and that said acts were done with intent to deprive the plaintiff of the benefit thereof.

The first question that will be considered, is whether there was error on the part of his Honor, the presiding Judge, in overruling the following ground upon which the motion was made, to vacate the order of arrest, to wit: That thecomplaint does not state facts sufficient to constitute a cause of action against the defendant, under subdivision 2, section 230 of the Code, as it does not allege fraud.

Section 230 of the Code provides that "the defendant may be arrested as hereinafter prescribed in the following cases: * * * 2. In an action to recover the possession of personal property fraudulently detained, or where the property or any part thereof, has been fraudulently concealed, removed or disposed of, so that it can not be found or taken by the sheriff or constable, and with intent that it should not be so found or taken, or with intent to deprive the plaintiff of the benefit thereof."

Section 232 is as follows: "The order may be made where it shall appear to the proper officer, by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists and that the case from the facts stated, is one of those mentioned in section 230."

His Honor, the Circuit Judge, states in his order, that the defendant conceded, that the affidavits contained sufficient grounds for the arrest, but that the order should be set aside on the ground that the complaint does not allege fraud.

The question under consideration is concluded by the case of Bank v. Jennings, 38 S.C. 372, 17 S.E. 16, in which the Court uses the following language, in discussing the section of the Code now numbered 230, to wit:

"The inquiry here is, whether the facts stated in the affidavits relied on, are sufficient to show that the appellant in this case has fraudulently misapplied money received by him, in a fiduciary capacity, or has been guilty of fraud in incurring the obligation for which the action is brought. For this purpose, we must look alone to the affidavits, as the complaint does not appear to have been verified, and can not, therefore, be considered as an affidavit, and can only be looked to for the purpose of ascertaining whether an action has been commenced, and what is the nature and object of such action."

The next question that will be considered, is whether there was error in refusing the motion to set aside the order of arrest, based upon the ground that the action is not one in which claim and delivery proceedings will lie, for the reason that the plaintiff seeks to recover an undivided crop; whereas, the proper proceeding is on the equity side of the Court for an accounting.

The authorities cited in the argument of the appellant's attorneys show, that as a general proposition, the landlord is the legal owner of the crops until a division thereof, even when there is an agreement, that the laborers shall receive a part of the crops in kind, as compensation for their services.

When the mortgages executed by the laborers in favor of the plaintiff were not paid at maturity, it (the plaintiff) became vested with the legal title, as between it and the laborers. The effect of the release by the plaintiff to the defendant, of all his interest in the laborers' shares of crops, was to estop him from disputing the fact, that the plaintiff had the legal title to those shares. The result of those transactions was that the plaintiff and defendant became joint legal owners of the crops.

There is nothing in section 230 of the Code, antagonistic to the general principle, that an action of claim and delivery, is not dependent upon the fact that the defendant should be in possession of the property when the action is commenced as an essential element of the cause of action. Segars v.Segars, 82 S.C. 196, 63 S.E. 891.

The case of Reynolds v. Philips, 72 S.C. 32,51 S.E. 523, thus points out the characteristics of an action in claim and delivery:

"The statutory action of claim and delivery is practically a combination of the former actions of replevin and trover. Replevin was an action to recover the possession of specific chattels, together with damages for their unlawful detention. Trover was an action for damages arising out of the unlawful conversion of personal property. In so far as the plaintiff's action sought to recover the possession of the chattels, it partook of the nature of replevin; but in so far as it claimed the value of the property and damages it resembled the action of trover. The action of claim and delivery is even more assimilated to the action of trover, than to the action of replevin. Tittle v. Kennedy, 71 S.C. 1,50 S.E. 544, 4 A. E. Ann. Cas. 68.

The complaint, in effect, states two distinct causes of action though in the alternative. The dual nature of the action finds expression in the judgment which the plaintiff is entitled to recover, in such action. The alternative judgment for the value of the property, will be enforced as effectually as the judgment for the recovery of the possession of the chattel. Archer v. Long, 47 S.C. 556, 25 S.E. 84. The plaintiff has the right to elect whether he will bring his action to recover possession of the specific chattel, or for damages for the unlawful conversion. Richey v. DuPre,20 S.C. 6. Not only is he entitled to exercise this right, before commencing his action, but he may make his election thereafter. The reason why the plaintiff is permitted to waive or withdraw one remedy and still recover upon the other, is because they are distinct and independent."

The prayer of the complaint forms no part of the cause of action, and it will not be dismissed if its allegations show that the plaintiff is entitled to any relief whatever, — either legal or equitable. Parker Co. v. Jacobs, 14 S.C. 112;Latham v. Harby, 50 S.C. 428, 27 S.E. 862; Keenan v.Leslie, 79 S.C. 473, 60 S.E. 1114.

Even if the legal title was not in the plaintiff and the defendant jointly, nevertheless, the defendant would be liable for the conversion of the plaintiff's interest in the property to his own use.

The appellant's attorney relies upon the following language in the case of Neal v. Suber, 56 S.C. 298,33 S.E. 463: "The parties to the contract, either were partners or joint owners of the crops. If they were partners the Court of equity was the appropriate tribunal for winding up and settling the dispute growing out of the partnership; and if they were joint owners of the crop, the Court of equity was likewise the proper forum, in which to seek partition thereof. The case was, therefore, properly triable by the Court, in the exercise of its equitable jurisdiction."

There is, however, a marked distinction between that and the present case, as the defendant herein rendered it impossible for the Court, in the exercise of its chancery powers, to make a division of the crops by wrongfully converting them to his own use.

This distinction is recognized in 34 Cyc. 1394, which states that the doctrine that one joint owner can not sustain replevin against his co-owner, does not obtain, where one repudiates the other's interest in property susceptible of division, or takes possession of the common property and converts it to his own use.

In the case of Luther v. Arnold, 42 S.C.L. (8 Rich.) 24, the doctrine is announced that one tenant in common may resort to the action of replevin against his cotenant under whom he entered into possession of a part of the land held in common, under a contract to pay rent.

In the case of Ledford v. Emerson (N.C.), 52 S.E. 641, the Court recognized the principle, that one partner may bring an action of trover against the other, when the latter has destroyed the partnership property, or removed it entirely beyond the reach or control of the other partner.

When the defendant herein converted all the cotton received by him to his exclusive use, and refused to deliver to the plaintiff his proportionate part thereof, he invaded the legal rights of the plaintiff, and thereby became liable for damages. Heath v. Haile, 45 S.C. 642, 24 S.E. 300; Graham v. Seignious, 53 S.C. 132, 31 S.E. 51; Youmans v.Moore, 69 S.C. 350, 48 S.E. 283; Bingham v. Harby Co., 91 S.C. 121, 74 S.E. 369; Link v. Barksdale, 70 S.C. 487,50 S.E. 189.

The case of Reynolds v. Philips, 72 S.C. 32, 51 S.E. 523, shows that the action of claim and delivery has superseded the action of trover, and is now the appropriate remedy where a person has invaded the property rights of another by wrongfully converting the property to his exclusive use.

For these reasons, I dissent.