Robinson v. Saxon Mills , 124 S.C. 415 ( 1923 )

The statement in the case is:

"This action was begun in the Court of Common Pleas for Spartanburg County by service of summons and complaint in December, 1920. The original complaint was for conversion and was founded upon a chattel mortgage, dated January 8, 1920, given by J.J. Whitesides, one of the defendants, to David Durroh, another defendant, covering three bales of cotton weighing 500 pounds each and the seed from same; also one black mare mule about seven years old named Ella, two heifers, and the increase from same. The mortgage states that all of the property was on the mortgagor's place, consisting of 105 acres near Cherokee Springs. The case came on for trial in May, 1921, before Judge Sease and a jury, and plaintiff withdrew his suit by consent of the Court and obtained and order duly allowing him to amend. The amended complaint was duly served and is founded upon the chattel mortgage above referred to, and also another mortgage dated January 2, 1920, given by the same man, J.J. Whitesides, to one L.L. McDowell, for $125, payable October 15, 1920, and covering one 500-pound bale of cotton, good middling; also 50 bushels of good corn; also one mare mule about seven years old, weight about 1,000 pounds, bought of Dave Pilgrim; the above cotton and corn to be grown on the mortgagee's place in 1920. Both mortgages were duly recorded. In addition to the above named defendants, the amended summons and complaint included also L.L. McDowell and Wallace Whitlock as additional defendants, alleging that Whitlock claims an interest in the crops and was named as party defendant for that reason, but no judgment was asked against Whitesides, Durroh, McDowell or Whitlock. The plaintiff claimed to be owner of both mortgages by purchase after the maturity of each, and after Saxon Mills, the defendant upon whom judgment was sought, had bought the cotton and converted it into cloth.

"Saxon Mills denied liability on the ground that the mortgage of Whitesides to Durroh did not cover any crops to be grown in 1920, but covered only crops that were on the mortgagor's place when the mortgage was given on January 8, 1920. The complaint alleged that Saxon Mills had bought cotton that was grown by Whitesides in 1920. As to the other mortgage, given by Whitesides to McDowell, Saxon Mills contended that it could not be relied upon as a support for the plaintiff's claim, for the reason that it covered one 500-pound bale of good middling cotton, and there was no testimony whatever showing that Saxon Mills had gotten one pound of good middling cotton from the Whitesides place.

"The defendant Whitlock answered, setting up a mortgage given to him by Whitesides, dated January 8, 1920, and covering certain personal property and all crops of cotton, cotton seed, corn, fodder, hay, etc., to be grown by Whitesides or by others for him during the year 1920 on said farm. This mortgage was for $330, and had been duly recorded. The answer of Whitlock was served upon the defendant Saxon Mills on the day the case was tried, to wit: May 23, 1922. The case was tried before Judge Sease and a jury, and resulted in a verdict for the plaintiff for $225.72.

"Defendant Saxon Mills objected to the introduction of the mortgage to David Durroh. It also moved for nonsuit at the close of plaintiff's testimony, and later for the direction of a verdict in its favor, both of which motions were overruled by the presiding Judge. Against the objection of counsel for the defendant Saxon Mills, the presiding Judge permitted the jury to consider the claim of the defendant Wallace Whitlock as if it also belonged to the plaintiff, and instructed the jury that the defendant Whitlock would be satisfied with a verdict in favor of the plaintiff."

I. The first assignment of error is that there was error in admitting the Durroh mortgage. This was error. The plaintiff claimed under a mortgage of the crop of 1920. The Durroh mortgage was executed on January 8, 1920, and covered cotton "raised on my place." and, after describing other chattels, says, "All on my place." So far as the record goes, the Courts would have to assume that Whitesides did not hold his cotton of 1919, in order so to construe the mortgage. It would have to supply the word "raised" and ignore the words "all on my place." No rule of construction permits such liberty with written instruments.

II. The next assignment of error is that the trial Judge did not declare a mortgage of "one 500-pound bale of cotton good middling * * * to be grown on my place" void for indefiniteness. Whitesides raised from seven to ten bales of cotton. The cases cited by the respondent of Brownv. Hughes, 94 S.C. 140; 77 S.E., 730; and Livingston v.Railway, 100 S.C. 18; 84 S.E., 303, are not authority here. In the first case it did not appear that there was more than one bale, and in the second the contest was about a verdict.

In 5 R.C.L. 5, pp. 426, 427, we find:

"Property Described as Part of Quantity. — Sometimes the subject-matter of a mortgage is described as a given number out of a large number of chattels of like character and description; as for instance, 50 mares, branded in a certain manner, out of larger herd. In such a case the Courts have sometimes held that the mortgage confers an implied power to select the designated number of chattels, and is not void for want of identity and description of the property mortgaged. But even under such a rule a mortgage on a number of cows and their calves out of a herd cannot apply to the calves after the first year and after they have ceased to follow their mothers, as it then becomes impossible to identify them. It may be said to be the general rule, however, that such a mortgage is not good as against creditors of the mortgagor or others acquiring adverse rights, unless it furnishes the data for separating the mortgaged property from the mass of the articles. If it leaves the designation of the specific property mentioned therein resting exclusively in the minds of the parties, it fails to meet the purposes and requirements of the law, and is void for indefiniteness."

There was no means of identification of the mortgaged cotton suggested by the mortgage. The trial Judge said that the mortgage covered all the cotton raised by the mortgagor. It either did that or it covered nothing. The mortgage is void and covers nothing. The point is well taken.

III. The next assignment of error is that the plaintiff and one of the defendants were allowed to combine and the plaintiff was allowed to recover on the strength of the defendant's mortgage. We have been cited to no authority, and we know of none, that allows a judgment for the plaintiff, under the circumstances.

I think the judgment appealed from should be reversed.