Bankhead v. Shed , 80 S.C. 253 ( 1908 )

April 27, 1908. The opinion of the Court was delivered by This suit in claim and delivery was commenced in a magistrate's court and resulted in a verdict and judgment for defendants, but on appeal to the Circuit Court, Judge Prince reversed the same and rendered judgment in favor of plaintiff for the personal property in dispute.

The property, some furniture, originally belonged to John Bankhead, who, in 1906, was under contract with N. A. Clack to work some farm land for him that year. Bankhead, after receiving advances from Clack to the amount of $25.05-100, quit work, and by an arrangement with Clack on May 17, 1906, executed to Clack a chattel mortgage on said furniture to secure the payment of said debt, payable on May 26, 1906. Bankhead then moved from Clack's place and put the property in possession of his father, the plaintiff. When the mortgage became due the defendant, C.T. Allen, a constable of Chester county, acting as agent for Clack, seized the property under the mortgage and the same was stored in the house of defendant Shed. This action was brought for its recovery.

Judge Prince gave judgment for plaintiff on the ground that Clack, having admitted in his testimony before the magistrate that the consideration of the mortgage was the stopping of a criminal prosecution, that such consideration was illegal and the mortgage invalid. The exceptions involve the question whether under the undisputed facts the consideration of the mortgage was illegal and the mortgage invalid.

John Bankhead, the owner of the property in question, was justly indebted to Norris A. Clack and gave the mortgage on the property as security for the indebtedness. Alex. Bankhead, father of John Bankhead, was present when the mortgage was executed, and testified that his son owed Clack the $25, and gave the mortgage willingly.

John Bankhead admitted that he owed Clack the $25.05 for advances, and testified: "I told him I would give him the mortgage until I could pay him." * * * "I signed the mortgage to make him sure of his money and that I would be freed. He wanted me to make some settlement before I moved, and that is when I gave him the mortgage."

Amzi Burris testified that he heard the contract between the parties, that Clack asked him if he had made any arrangements to settle the debt with him; John said he had not. Clack said if he would give him collateral security it would settle everything and that he might go.

J.D. Clack testified that he was present when the mortgage was given and witnessed it, that his son claimed that Bankhead owed him and that he would have to pay him before he left; that Bankhead admitted it and agreed to give the mortgage.

J.L. Duncan testified that John Bankhead admitted to him that he owed Clack and that he had given him a mortgage to secure a debt.

Now, it is true that N.A. Clack, on cross-examination, testified: "The sole object of this mortgage was that if he paid me the money within ten days I would not prosecute. The mortgage was given me to stop a prosecution. If paid in ten days there was to be no prosecution." But he also testified that at the time Bankhead gave him the mortgage he owed him $25.05 for supplies and money advanced, that he did not promise not to prosecute him to get him to sign the mortgage, that he agreed to wait on Bankhead ten days for payment if he gave the mortgage, that no proceedings had been started against Bankhead, that he did not claim anything of Bankhead more than the debt he owed him.

Now, it seems to us that the only inference of which the testimony is susceptible is that the mortgage was given to secure a valid existing indebtedness, but that this result was induced by the promise of the mortgagee not to prosecute the mortgagor for violation of the labor contract statute, if the mortgage was paid in ten days.

We need not pause to note that section 357 of the Criminal statutes, making it a misdemeanor to wilfully violate an agricultural labor contract after obtaining advances on the faith of it, was absolutely void at the time of the execution of the mortgage (Ex parte Holman, 79 S.C. 9), nor is it necessary to consider whether a promise not to prosecute under a void statute is so contrary to public policy as to vitiate the mortgage. It is sufficient to say that if the mortgagor was liable to be subjected to a prosecution under section 357 and the mortgagee, in consideration of the execution of the mortgage to secure a valid existing debt, agreed not to prosecute if payment was made in ten days, that the existing debt was such a valid consideration as to support the mortgage

In Matthison v. Hanks, 2 Hill, 625, a note given in satisfaction of an assault and battery is valid, the injury done to the payee by the assault and battery being a good and legal consideration, and in Banks v. Searles, 2 McMullen, 356, a note given in part as compensation and partly to compromise a prosecution for an assault and battery is not void, the consideration being adequate to sustain the action.

The principle of these cases is that where the note or mortgage is supported by a valid consideration between theparties it is not void. The case does not fall within the principle of those cases in which some third party is sought to be bound by an obligation as to him based solely upon the consideration of stopping criminal proceedings, as, for example, in Corley v. Williams, 1 Bail., 588; Williams v.Walker, 18 S.C. 583; Groesbeck v. Marshall, 44 S.C. 543,22 S.E., 743; Bleckley v. Goodwin, 51 S.C. 362,29 S.E., 3.

It is true, as declared in Booker v. Wingo, 29 S.C. 122,7 S.E., 49, that the law does not tolerate the abuse of criminal process as a means of collecting debts, and that contracts made solely on a compromise of indictments for crime will, as a rule, be set aside, but the Court recognized the exception to the general rule in the principle declared inBanks v. Searles, supra, and in enforcing the principle declined to relieve a married woman of her deed in settlement of a debt of her husband and father, although one of the main inducements upon her mind was the promise to use influence to stop a pending prosecution of her husband for larceny. The release of the debt against her husband and father was deemed a good and valuable consideration supporting the deed.

This principle was also enforced in Pierson v. Green, 69 S.C. 559,48 S.E., 624, wherein it was held that a mortgage given by a wife for money to pay her husband's debts and to compromise a criminal prosecution against him, which the mortgagee actually aided in carrying to effect, is void as to so much of the mortgage debt as was used in compromising the criminal prosecution, but valid as to the remainder used in paying the husband's debts. In that case the parties to the mortgage were third parties and under no obligation to settle the claim of the prosecutor against the prisoner in jail, and the only consideration supporting their payment to the prosecutor was the stopping of a criminal prosecution.

In this case the parties to the mortgage are the original parties concerned, and the mortgage rests upon a valid consideration moving between the parties. Moreover, in this case, there was no duress by imprisonment and no prosecution had ever been begun. At most there was a mere threat to prosecute under a void statute, if the debt was not adjusted.

The case of State v. Robinson, 70 S.C. 468,50 S.E., 192, does not conflict with the view announced, but, on the contrary, harmonizes therewith, for in that case a third party, Ashley, paid money to Monroe for the purpose of settling a criminal prosecution by Monroe against Robinson. No consideration moved between Ashley and Monroe but the payment and receipt of money to stop a criminal prosecution against Robinson. Hence such an illegal and void transaction could not support the labor contract between Ashley and Robinson for violation of which Robinson was criminally prosecuted by Ashley.

The breach of the labor contract by Bankhead, under the decision of the Court in Ex parte Holman, supra, was a mere private wrong for which Clack had merely civil remedies, and the mortgage secured nothing but a valid existing debt. The case, therefore, falls well within the doctrine ofBanks v. Searles, supra.

If it be said that this is an action at law and that the finding of fact by the Circuit Court that the consideration of the mortgage was the stopping of a prosecution is final and cannot be reviewed, we are still of the opinion that it was error of law upon the undisputed facts of the case to hold the mortgage void. The evidence is not susceptible of an inference that the debt was not also a consideration of the mortgage.

The judgment of the Circuit Court is reversed, and the judgment of the magistrate court is affirmed.