Rentz v. Crosby , 108 S.C. 431 ( 1918 )

January 7, 1918. The opinion of the Court was delivered by Crosby was and is debtor to Rentz, and to secure payment of the debt Crosby gave to Rentz a mortgage on a horse and mule. There were other subjects in the mortgage than those, but for simplicity we restrict the statement to a horse and a mule. The mortgage fell due; Rentz converted the horse and now sues for the mule. After two ineffective trials before juries, the cause was submitted to the Circuit Court as a controversy without action. Let the "case" be reported.

The only issue of law is, How much credit on the debt in money must Rentz allow Crosby for the horse he took? The Circuit Court held "to the extent of the proportion in value that the property converted bore to the entire property;" and then gave judgment for the mule.

It is settled in this State, by dictum if not by opinion, that if a mortgagee shall convert to his own use all the property embraced in the mortgage, and the value of it shall exceed the debt, then the mortgagee must account to the mortgagor for such excess; that if there be no excess, and even if there be an actual deficiency, the mortgagor may demand nothing more of the mortgagee. Moodyv. Haselden, 1 S.C. 129; Kendall v. County, 28 S.C. 258,5 S.E. 622; Bank v. Holman, 31 S.C. 161, 9 S.E. 824;Green v. Scruggs, 73 S.C. 406, 53 S.E. 612. It is not worth while to consider the rationale of the opinions; it is sufficient to rest upon the conclusions they announce.

It is also settled by opinion that if the mortgage includes several subjects, and the mortgagee shall convert one subject only, then such act of itself will not discharge the mortgage debt. Trimmer v. Vise, 17 S.C. 500, 43 Am.Rep. 624; Moody v. Haselden, supra; Hull v. Young,29 S.C. 70, 6 S.E. 938; Green v. Scruggs, supra. The legal effect of such last suggested act is the issue now up, and it was the exact issue decided in Green v. Scruggs. The only difference between counsel is the meaning of that case. The expression of the Circuit Court before quoted was taken from Green v. Scruggs, 73 S.C. 407,53 S.E. 612, and the expression in Green v. Scruggs was taken fromTrimmer v. Vise, 17 S.C. 504, 43 Am. Rep. 624. In the earlier case of Moody v. Haselden, the direction of the Court was to ascertain the value of that property which the mortgagee had received, and, should it fall short of the debt, then the mortgagee should have judgment for the balance. In the subsequent case of Hull v. Young, the Court used this language:

"A purchase of a part only of the mortgaged premises operates as an extinguishment pro tanto only, and the balance of the mortgage debt may be enforced against the remainder of the mortgaged premises."

The affirmation in Trimmer v. Vise and Green v. Scruggs that the mortgagor is entitled "to credit on his note to the extent of the proportion in value that the property converted bears to the value of the entire property," is, we venture to think, not altogether clear in expression.

There is no evidence in the record of the value of the horse or the mule; if the value of the horse be assumed to be $100 and the combined value of the horse and mule be assumed to be $300, then the only proportion which the first sum could bear to the second sum is that of one to three. But in the assumed case the mortgagor would be entitled to a credit of $100 on the debt. The meaning, then, of the quotation under consideration is the same as the meaning which was expressed in Moody v.Haselden and Hull v. Young, and it is that the mortgage debt shall be credited with the market value of the converted horse. 11 Corpus Juris, p. 686, sec. 465. The consequence of such a credit is fixed by the agreed "case" below.

Our judgment is that the order of the Circuit Court is wrong; it is reversed, and the cause is remanded to that Court to carry out the stipulations of the "case" there agreed upon.

MESSRS. JUSTICES HYDRICK and WATTS concur.

MR. CHIEF JUSTICE GARY dissents.

MR. JUSTICE FRASER. I think Green v. Scruggs clearly fixes the proportionate value and not the market value; so I dissent.