Robinson v. Saxon Mills

May 14, 1923. The opinion of the Court was delivered by Action for damages on account of the alleged conversation of a bale of cotton upon which the plaintiff claimed to hold a chattel mortgage, and which had been sold by the mortgagor to the Saxon Mills.

It appears that on January 8, 1920, Whitesides gave a note to Durroh for $313.33, due November 20, 1920, and to secure it executed a crop mortgage covering three bales of cotton, cotton seed, and certain live stock; that on January 2, 1920, Whitesides gave a note to McDowell for $125, due October 15, 1920, and to secure it executed a crop mortgage covering one bale of cotton, 50 bushels of corn, and a mule; that on January 8, 1920, Whitesides gave a note to Whitlock for $330 (maturity not stated in the record), and to secure it executed a crop mortgage covering certain personal property and all crops grown by Whitesides during the year 1920 upon his farm. The Whitlock mortgage was transferred to American National Bank, and upon it Whitesides paid $175.73 on November 1, 1920. All of these mortgages were duly recorded. During the year 1920 Whitesides cultivated a part of his farm and rented a part of it to one Golightly for one-third of the crop. Whitesides made from seven to ten bales of cotton, and so did Golightly. In the fall Whitesides, being heavily involved in debt, sold the cotton raised by him, the rent cotton which Golightly owed him, and three bales of Golightly's own cotton, absconded, and has not been heard from since.

After this performance of Whitesides, the plaintiff, Robinson, with full knowledge of it, bought and had transferred to himself the Durroh note for $313.33 and the McDowell note for $125 on or about December 1, 1920.

Prior to this last-mentioned date, in October, 1920, the defendant Saxon Mills purchased from Whitesides two bales of cotton, No. 4598, weighing 471 pounds, and No. 4735, weighing 488 pounds, of the value of $100 each.

In December, 1920, the plaintiff instituted this action for conversion by Saxon Mills of said two bales of cotton, making Whitesides, McDowell, and Whitlock parties defendant also. The Saxon Mills answered, admitting the purchase of the two bales of cotton, but denied that the mortgages claimed by the plaintiff as assignee of Durroh and McDowell respectively were valid liens upon them. Whitlock answered, setting up his mortgage of $330, upon which $175.73 had been paid, leaving a balance due of $173.01.

The foregoing statement of facts is admitted in the record by stipulation of counsel, with the additional facts that the cotton purchased by Saxon Mills was raised upon the Whitesides farm in 1920, and that demand had been made upon Saxon Mills by the plaintiff, but none by the defendant Whitlock.

Upon the trial it was announced that an agreement had been entered into between the plaintiff and the defendant Whitlock that, if the verdict should be for the plaintiff, the amount would be divided between them upon a certain basis. The defendant Saxon Mills was not a party to this agreement and registered its objection to it.

As there is a controversy as to the validity of the description in the mortgages, they will be set forth in exact terms:

The Durroh mortgage:

"There bales of cotton, weighing 500 pounds each, and the seed from same, raised on my place, consisting of 105 acres near Cherokee Springs, S.C. and bounded by lands of Wiley Parris, Mrs. Lizzie Wall, and Charles Landrum: also one black mare mule about seven years old named Ella; also two heifers, one dove-colored about 10 months old, and one about one year old of yellow color, and the increase from same. There is no other mortgage on any of the above property. All on my place."

The McDowell mortgage:

"One 500 pound bale of cotton, good middling, also 50 bushels of good sound corn, also one mare mule about seven years old, weight about 1,000 pounds, bought of Dan Pilgrim. The above cotton and corn is to be grown on my place, better known as part of William Thompson place, bounded by B.F. Williams, J.N.F. Blackwell, and others."

"[Certain personal property;] also all crops, cotton, cotton seed, corn, fodder, hay, grain, and produce to be grown by me or by others for me during the year 1920 on lands belonging to me, purchased by me from Mr. De Pass, situated Wolf school district, county and state aforesaid."

At the close of the evidence for the plaintiff, the defendant Saxon Mills made a motion for nonsuit, and, at the close of the entire evidence, a motion for a directed verdict in its favor, both of which were refused. The several grounds of these motions were the same as are hereinafter discussed in the disposition of the exceptions.

The jury rendered a verdict in favor of the plaintiff for $225.72, and from the judgment entered thereon the defendant Saxon Mills has appealed.

The contentions of the appellant are as follows:

(1) That the Durroh mortgage covers cotton already raised, and not cotton to be raised during the year 1920.

(2) That the McDowell mortgage is invalid on account of the indefiniteness of the description of the mortgaged property.

(3) That the transfer of the two mortgages (Durroh and McDowell) to the plaintiff after the cotton had been converted by the Saxon Mills did not assign to the plaintiff the right of action based upon such conversion, the same being a tort.

(4) That the Circuit Judge erred in giving effect to the agreement between the plaintiff and Whitlock to combine their mortgage claims against Saxon Mills.

As to the first contention: So far as the cotton is concerned the description must be interpreted without reference to the concluding expression, "All on my place," which clearly has reference to the live stock covered by the mortgage. It is drawing a very fine bead to contend that the expression, "Three bales of cotton weighing 500 pounds each and the seed from same raised on my place," contains no element of futurity, and must be limited to three bales the mortgagor had then on hand. The well-known custom of the country and the evident intention of the parties show that the mortgagor meant cotton to be raised. But the year is not mentioned, and under the provisions of Section 4106, I Code of Laws A.D. 1912, which denies validity to a mortgage of crops "other than the crop or crops to be raised during the year in which said mortgage is given," to render such a mortgage valid, it is essential that the inhabition of the statute be negatived by naming the year. Inasmuch, however, as the note fell due on November 20, 1920, and authority to seize the mortgaged property if it should not be paid was given, it may well be concluded that the cotton to be raised in that year was intended to be mortgaged, and that as between Whitesides and Durroh it would be good.

Whether or not it would be good against a purchaser of the cotton is a question not raised.

As to the second contention: The McDowell mortgage covers one 500-pound bale of good middling cotton, to be grown on the mortgagor's place, which place is sufficiently described. This mortgage, like the Durroh mortgage, makes no mention of the year in which the cotton is to be grown, and the observations made above in reference to the Durroh mortgage are applicable to this mortgage, so far as this suggestion is concerned.

The Saxon Mills, assuming that it bought a bale of cotton from Whitesides raised upon his place and belonging to him, insists that, as between it and the mortgagee, the description of the bale is too indefinite to constitute the mill purchaser with constructive notice of the mortgage by reason of the recording. They insist further that there is no evidence but that this was a bale of cotton that belonged to the tenant Golightly, or that it was "good middling" cotton as called for in the mortgage.

The evidence tends to show — in fact, it is so admitted in the record — that Whitesides raised on his own account during the year 1920 between seven and ten bales of cotton. The first question to be decided therefore is whether or not a mortgage upon one bale of cotton of a number of bales, as between the gortgagee and a purchaser without other notice than the recording, contains a sufficiently definite description to charge the purchaser with notice.

It is held in the case of Brown v. Hughes, 94 S.C. 140;77 S.E., 730; that the description "one 500-pound bale of cotton to be grown in the year 1911 on the lands of H. in Oconee County" (describing the land), is not void for want of certainty. That was in a contest between senior and junior mortgagees, and the same rule would apply in a contest between the mortgagee and a subsequent purchaser. The distinction drawn in contests between the mortgagee and the mortgagor and between the mortgagee and a purchaser, adverted to in 11 C.J., 463, does not appear to have received attention in the case, but it was necessarily involved, and until that case should be overruled the Court is bound to follow it.

It is next insisted by the appellant that there is no evidence tending to show that the cotton sold to the defendant was not the cotton of Golightly which the mortgagor unlawfully sold. We find no such position taken by the defendant in the trial below, and for that reason it cannot be considered.

It is also insisted by the appellant that the mortgage covered a 500-pound bale of "good midling cotton," and that there is no evidence tending to show that the cotton purchased by the defendant was of that grade. The grade was designated not as a matter of description, but as a basis of security. The mortgagee was entitled to claim as much cotton as would have amounted in value to that grade and quantity.

As to the third contention: It is unquestionably true that a right of action for a tort which has affected property, real or personal, may be assigned. Millerv. Newell, 20 S.C. 139; 47 Am. Rep. 833; Ex parte Hiers,67 S.C. 108; 45 S.E., 146; 100 Am. St. Rep., 713;Ex parte Jackson, 99 S.C. 66; 82 S.E., 990; 2 R.C.L. 610; 5 C.J. 889. But that does not meet the question here, which is whether or not the assignment of the notes and mortgages ipso facto constituted the assignment of a right of action for a tort which had theretofore been committed in reference to the property covered by the mortgages; for conversion is tort. Here it appears that the conversion took place in October, 1920, and the assignments were executed in December following. The authorities are overwhelming that the plaintiff, to maintain trover and conversion, must show title or right to possession of the chattel at the time of the conversion.

In Jones on Chattel Mortg. (2d Ed.) § 510; it is said:

"A right of action for an injury to the property or to the mortgagee's rights does not pass by his assignment of the mortgage. Thus an assignee cannot sue for a conversion of property which has taken place before the execution of the assignment. The assignment passes all the mortgagee's right to the property, but does not pass his right to sue for a conversion of the property, or for injuries to it, while he was the legal owner of it."

In 26 R.C.L. 1131, it is said:

"In trover * * * the plaintiff must show that he has either a general or special property in the thing converted and the right to its possession at the time of the alleged conversion" — citing an array of authorities.

In 11 C.J. 671 it is said:

"In order to give the assignee a right of action for conversion of the mortgaged property, the conversion must have taken place after the assignment of the mortgage, since the assignment will not transfer such a right of action; nor will the assignment of a mortgage and the note secured thereby transfer to the assignee a right of action which the mortgagee may have against the Sheriff for the return of the property.

In 38 Cyc. 2044, it is said:

"He who seeks to recover in trover must prove that he was in actual possession of the chattel converted at the time of the conversion, or that he had the right to immediate possession thereof."

"Whenever proof of title is necessary to sustain plaintiff's case, it must appear that he held title to or had a general or special interest in the property in controversy at the time of the alleged conversion." 38 Cyc., 2045 (note), citing a number of cases.

In Gilbreath v. Copeland, 16 Ala., App. 220;77 South, 58, it is said:

"The undisputed evidence shows that at the time of the alleged conversion and destruction of the lien Moon, and not the plaintiff, was the owner of the note and mortgage above referred to, and that the plaintiff's only claim to said cotton is based upon that note and mortgage which he reacquired, by purchase * * * after the alleged destruction of the lien. The Court below therefore erred in refusing to give the affirmative charge requested in writing by the appellant."

In Bowers v. Bodley, 4 Ill., App. 279, there were two mortgages upon a crop of corn. The mortgagor delivered the corn to the senior mortgagee, who sold it. The junior mortgagee subsequently assigned his mortgage to another who brought trover against the purchaser from the senior mortgagee. It was held that conceding, as claimed by the junior mortgagee, that his mortgage was preferred to that of the senior mortgagee, the assignment of the junior mortgage did not convey with it the right to sue for a conversion antedating the assignment; that to maintain such an action the assignee must have been the owner or entitled to the possession of the property at the time of the conversion.

It follows, therefore, that the motion of the defendant for a nonsuit should have been granted, so far as the plaintiff's claims were concerned.

As to the fourth contention: It was manifestly prejudicial to the defendant Saxon Mills to allow the plaintiff and Whitlock to make an agreement as to the course of the trial, to which agreement the defendant was not a party and to which it objected.

The judgment of this Court is that the judgment of the Circuit Court be reversed, that the case be remanded to the Circuit Court, with instructions to order a nonsuit as to the plaintiff under rule 27 (90 S.E. xii), and that a new trial be had upon the claim of the defendant Whitlock, with leave to the defendant Saxon Mills to reply to his answer.

MESSRS. JUSTICES WATTS and MARION, concur.