Opinion
14728
July 21, 1938.
Before BELLINGER, J., Kershaw, October, 1937. Judgment affirmed.
Action at law by Eva L. Maynard against the Bank of Kershaw, as principal, and T.B. Clyburn and Fred E. Culvern, as sureties, for the breach of a claim and delivery bond. From a judgment in favor of the plaintiff, the defendants appeal.
The report of the Master, requested to be published, follows:
W.L. DePass, Jr., Master in Equity for the County of Kershaw, respectfully reports as follows to the Honorable, the Court of Common Pleas for Kershaw County:
The above-entitled action was brought in Kershaw County, the summons and complaint being duly served on September 11, 1932. The defendants demurred to the complaint, and his Honor Judge Townsend, presiding Judge of the fourth Circuit, overruled the demurrer. The defendant Bank of Kershaw answered over and the individual defendants, T.B. Clyburn and Fred E. Culvern filed separate answers. The plaintiff demurred to the answer of the Bank of Kershaw, and his Honor Judge Townsend overruled the demurrer. The plaintiff then moved to strike out certain paragraphs of the bank's answer, and this motion was duly granted by Judge Townsend.
By motion of counsel for plaintiff, and with the consent of counsel for the defendants, his Honor Judge Townsend at his chambers in Camden, on June ___, 1933, referred the above action to me as Master for Kershaw County to report to the Court all issues of law and fact.
The above-entitled cause is an action at large by Eva L. Maynard against the Bank of Kershaw, as principal, and T.B. Clyburn and Fred E. Culvern, as sureties, for the breach of a claim and delivery bond, in the penal sum of $7,000.00, and in the statutory form, being conditioned to prosecute or to return if the return of the property be adjudged. The breach assigned is the failure to prosecute the claim and delivery action.
The plaintiff alleges that in the capacity of landlord she distrained for rent the furniture, fixtures and stock of parts and used cars of her tenant T.L. Ingram, doing business in Cheraw under the name of Ingram Motor Company. The plaintiff avers that she distrained for eleven (11) months' unpaid rent in the amount of $1,100.00, and that while the personal property distrained was in the hands of her agent, C.W. Sims, that it was seized in claim and delivery proceedings brought by the Bank of Kershaw claiming the property as mortgagee, the bond here in action being given by the claim and delivery plaintiff.
The complaint further alleges that the claim and delivery plaintiff failed to prosecute the action commenced by it but rather appeared before his Honor Judge Dennis, by attorney, and asked and was granted a discontinuance of its action over the formal objection of this plaintiff. The plaintiff herein asks judgment for the breach of the bond in the sum of Eleven Hundred ($1,100.00) Dollars, and after notice duly given the adverse parties, the plaintiff has asked leave to amend the prayer of the complaint so as to ask for $1,100.00 and interest at seven (7%) per cent. from the date of the taking of the property.
The answer of the Bank of Kershaw admits the formal allegations of the complaint, admits the plaintiff's distress levy and advertisement of sale, and admits that it brought claim and delivery proceedings claiming the property by reason of a chattel mortgage then in default. The defendant then set up several special matters by way of defense, but these were stricken by his Honor Judge Townsend, leaving the answer a general denial except as qualified by the admissions recited above. The answer of T.B. Clyburn and Fred E. Culvern is a general denial except in so far as they admit the execution of the bond in action.
Reference was held by me on December 13, 1933, in the above case for the purpose of taking testimony and hearing argument, which reference was adjourned divers times and finally concluded on March 26, 1936.
Now, therefore, I beg to report to the Honorable Court as follows:
The facts of this case are virtually undisputed, and with one exception such little disagreement as there is between the parties seems to be inconsequential in view of the rules of law which I deem applicable.
In 1928, T.L. Ingram, doing business as Ingram Motor Company, went into the building of Mrs. Maynard, located in Cheraw, as tenant under an agreement to payment of $150.00 per month.
On March 25, 1930, the Bank of Kershaw loaned Mr. Ingram $8,350.00 and took as security a chattel mortgage on his furniture, fixtures and stock in trade then located in Mrs. Maynard's building. This mortgage was duly recorded in the office of the Clerk of Court for Chesterfield County on March 31, 1930.
In March, 1930, a conversation took place between Mr. Ingram and Mr. J.W. Maynard as agent for his wife, the import of which is in dispute. Maynard testified that because of the depression he agreed to collect only $100.00 rent per month and to make no call for the balance unless business conditions improved. Mr. Ingram says that he had made arrangements to rent other premises in Cheraw and that Mr. Maynard agreed for his wife to reduce the rent to $100.00, and that it was because of this new agreement that he remained as Mrs. Maynard's tenant.
On August 1, 1931, Mrs. Maynard levied distress proceedings on the property of her tenant to recover $1,100.00 past due rent, the same being eleven (11) months' rent. This property was appraised as provided by law, and advertised for sale. Before it was sold it was taken by the Bank of Kershaw in claim and delivery proceedings, the bank claiming by virtue of the chattel mortgage recited above which was then in default. The appraisers valued the property at approximately $5,500.00. In its claim and delivery proceedings the Bank of Kershaw, by affidavit, valued the property at $3,500.00.
Pending action in the claim and delivery proceedings, the county authorities levied on the personal property in litigation and it was sold at public auction to satisfy $1,176.54 in unpaid taxes due by T.L. Ingram. At this tax sale this personal property was bid in by Mr. John T. Stevens, president of the Bank of Kershaw for $1,176.54, and the property was subsequently removed from Cheraw to Kershaw. Part of it was subsequently sold, but defendants testify that the bulk of it is still warehoused there.
The question of the value of the property distrained and subsequently taken in claim and delivery is the only vital question of fact in dispute. The plaintiff contends that it was worth at least $2,276.54 ( i. e., $1,100.00 more that the $1,176.54 tax lien) at the time it was taken from the plaintiff by claim and delivery. The defendants contend that it was worth no more than $1,176.54, as evidenced by the price brought at the tax sale. The determination of this issue presents mixed questions of law and fact.
As stated above, the property in dispute was the furniture, fixtures and ordinary stock in trade of the Ingram Motor Company. The Ingram Motor Company sold Fords, and the stock consisted largely of parts for Model T and Model A cars and for Fordson tractors. As evidence tending to prove a value of at least the $2,276.54 claimed by the plaintiff, I call attention to the fact that Mr. Stevens testifies by affidavit that his bank, this defendant, loaned $8,350.00 upon the security of the Ingram Motor Company's furniture, fixtures and stock. There is no testimony tending to show any decrease in the value of this property between the date of the loan and the distress proceedings; in fact, Mr. Ingram testifying as witness for defendants, stated that his stock remained about the same between these two dates.
It is further to be noted that Mr. M.C. Thomas of Cheraw, S.C. an automobile mechanic, testified that he helped to appraise the property in the distress proceeding, and that after deducting the dealer's amount of discount of 40 per cent. from the list price, they then deducted 15 per cent. from the remainder, and that he and his associates valued this property at $5,500.00. The defendants have objected to this testimony on the grounds that they were not parties to the appraisal proceedings, but Mr. Thomas has stated how he and the other appraisers valued this property, and while this testimony is not binding on the defendants, I hold that it is competent evidence as going to prove the value of this property at almost the exact time it was seized in claim and delivery.
The plaintiff has especially called to my attention the fact that the Bank of Kershaw, a present defendant, by its affidavit in its claim and delivery action, has admitted that this property was worth $3,500.00 as of the time it was taken. The plaintiff finds in this affidavit the elements of an estoppel to prevent the defendant now seeking to prove the property to have been of less value. In support of this argument my attention has been directed to the following citations:
Kaufman v. Seaboard Air-Line Ry., 10 Ga. App., 248, 73 S.E., 592. Kaufman brought bail trover against the railroads, gave bond and took the goods. Kaufman was nonsuited by the Court and the Court allowed the defendant to take judgment against Kaufman on his bond for $800.00, the amount stated in plaintiff's petition and affidavit for bail as the value of the goods. On page 593, 10 Ga. App., on page 250, the Court says: "The defendant in any of these events [if plaintiff's action is dismissed or terminates in nonsuit] may ask for the question of value to be submitted to the jury for assessment; but, if he is content with the value sworn to by the plaintiff in his affidavit for bail, verdict is unnecessary, and he may, upon the sworn admission of the plaintiff as contained in this affidavit, take judgment against the plaintiff and his sureties for the sum stated in the affidavit, with interest thereon."
Huggeford v. Ford, 28 Mass. 223, 11 Pick., 223. "When it is considered that the plaintiff in replevin sets his own value upon the goods and takes them out of possession of a person prima facie entitled to the custody of them, and undertakes to prove a title in himself, which he subsequently fails to do, there seems to be no hardship in holding him to the value fixed in his writ."
But if the defendant's affidavit be regarded merely as an admission against interest (and as such I shall regard it because of the lack of South Carolina authority on the question of estoppel) it goes very far to discredit and disprove the defendant's present contention that the property was worth not $3,500.00 but $1,176.54.
The defendants, on the other hand, contend that this property was worth no more than $1.176.54, as evidenced by the price brought by it at the tax sale, and they contend that such sale conclusively establishes the question of value. On this proposition the plaintiff has submitted a brief of authorities, both primary and secondary. It appears to me that these authorities lay down two rules, one or the other of which must govern here. The first of these denies the competency of a forced sale as evidence of value. The second of these admits its competency, but denies its exclusiveness and recognizes the admissibility of other evidence as to value. See: Kansas City G.R. Co. v. Haake, 331 Mo., 429, 53 S.W.2d 891, 84 A.L.R., 1477; Edwards v. Mayes, Tex. Civ. App., 136 S.W. 510; McCracken v. West et al., 17 Ohio, 16; Jones on Evidence, Vol. 2, Sec. 705 and Sec. 698; Wigmore on Evidence, Vol. 1, Sec. 463; Chamberlayne on Modern Law of Evidence, Vol. 3, page 2896 and page 2917; 10 R.C.L., 945, 22 Corpus Juris, 181 and 185.
In view of this divergence of authority, I shall adopt the rule most favorable to the defendants and hold that the price paid at the tax sale by Mr. Stevens, president of the defendant bank, is some evidence of the value of the property in question and that it tends to establish the value as of the figure urged by the defendants.
As further evidence of the lower value, the defendants introduced evidence that most of the property is still warehoused in Kershaw, and that only about $50.00 worth of it has been sold. Mr. Stevens states that he was able to get offers of no more than $1,000.00 or $1,100.00 for it; Mr. Bennett of Cheraw, an automobile dealer, but not a Ford agent, a witness for the defendant, testified that he offered $1,500.00 for this property.
Taking into consideration all of this evidence of both parties, and bearing in mind especially the defendant's affidavit and the notorious fact that a tax or other forced sale does not bring a fair price, I hold that the value of the property in question at the time it was taken in claim and delivery was at least $2,500.00, as claimed by plaintiff. In so holding I am aware of the fact that with the passing of time a stock of automobile parts would become of increasingly less value, and if it was not sold to some one in the trade it might become practically worthless in the hands of Mr. Stevens. My task is to find the value of a current stock in trade the first part of September, 1931.
Having decided this one major dispute as to the facts of this controversy, it now becomes necessary to consider the law applicable to the facts set out above.
The first question for my determination is as to whether the facts of this case establish a breach of the claim and delivery bond. This bond, in the statutory form, contains two conditions. It is conditioned to prosecute the action and to return, if return be adjudged. This action is for failure to prosecute.
Much authority might be cited on the proposition that, "a replevin bond is to be interpreted like any other contract, or bond, and its several conditions are separate and independent, so that an action may be maintained on the bond for the breach of any of its conditions." 54 C.J., 633. However, this seems useless for the reason, as held by his Honor Judge Townsend, in his order overruling the defendant's demurrer to the complaint, that this case is governed by the case of Alderman, Sheriff, v. Roesel, 52 S.C. 162, 29 S.E., 385. In this case it was held that a plaintiff in claim and delivery commits a breach of his bond when he discontinues his action before final judgment. Attention is also called to Seaboard Air Line R. Co. v. Hewlett, 94 S.C. 478, 78 S.E., 329, which is a still stronger case for the plaintiff in this action. In that case the claim and delivery action was dismissed on motion of the defendant for lack of jurisdiction. The Court held that this was a breach of the condition of the bond to prosecute and that it gave rise to a right of action for breach of the bond. From these South Carolina authorities it seems clear that Mrs. Maynard has a right of action and it therefore becomes necessary to examine the question of the damages to which she is entitled.
As set out, Mrs. Maynard held the property taken in claim and delivery under distress proceedings to secure a claim for eleven months' rent which amounted to $1,100.00. She claims that she had a special property interest in the property in her possession as of the amount of her rent lien and, as damages, seeks to recover in this action on the bond the value of this property right.
The defendants before me sought to impugn the legality of the distress proceedings on the grounds that it was a distress for more than one year's rent, but I consider this objection bad in fact and law. It appears that the distress is a common-law remedy and is not bad when for more than one year. See Blake v. De Liesseline, 4 McCord, 496. The only provision of the Code which limits the landlord's right as to time is Sec. 8817. This section says that as against an execution or other creditor the landlord's lien shall not be for more than one year's rent when such creditor pays the rent in arrears, not to exceed one year. No payment in fulfillment of this statute was made to Mrs. Maynard; therefore, this statute is not applicable to this case.
The defendants urge that the plaintiff sustained no damages when the property was taken from her for the reason that her lien as landlord was inferior to the lien of the mortgage which was for a greater amount than the value of the property. The defendants admit that the furniture, fixtures and stock of the Ingram Motor Company were in Mrs. Maynard's building at the time the mortgage on this property was given. They contend, however, that from the time this mortgage was recorded that it was a lien superior to all rent thereafter accruing. In support of this proposition, they rely primarily on the case of Mather-James Co. v. Wilson, 172 S.C. 387, 174 S.E., 265. In connection with this case I desire to call the attention of the Court to the fact that there is a discrepancy between the South Carolina and the Southeastern Reports, and that the Clerk of the Supreme Court has certified to the correctness of the latter.
It seems to me that this question of priority is conclusively settled in favor of the landlord by Sections 8819 and 8820 of the Code of 1932, and the cases construing these sections. Special attention is called to the cases of Morgan Silver Plate Co. v. Bobo undertaking Co., 107 S.C. 280, 92 S.E., 720; Dana v. Peurifoy, Receiver, 142 S.C. 46, 140 S.E., 247; Ex parte Stackley, 161 S.C. 278, 159 S.E., 622. From these authorities it seems that the law of South Carolina recognizes the priority of the rent lien of the landlord to the interest of the mortgagee of personal property, except in two cases: (1) When the mortgage was executed before the rental contract was entered into, or (2) when it was executed before the chattels were brought upon the rented premises. The claim of the Bank of Kershaw comes within neither of these two exceptions to the general rule favoring the lien of the landlord.
The case of Mather-James Co. v. Wilson, supra, relied on by the defendants, involved a purchase-money mortgage. It was concerned with the rights of a subsequent creditor under the recording act and really sets forth a limitation on the rights of the mortgage under the two exceptions listed above. The language of Mr. Chief Justice Stabler is as follows: "Under the statute, the holder of a mortgage upon the chattels will have a superior claim to that of the landlord for rent only when the mortgage was executed before the rental contract was entered into or before the chattels were brought upon the rented premises, and as we will endeavor to show, recorded before the debt of the landlord was contracted." (Emphasis supplied.)
This says "and recorded". If it read "or recorded" it would be a third exception, and favor the defendant. Reading "and recorded" it simplifies the two exceptions to the general rule. It in no wise concerns this defendant whose case comes within neither exception to the general rule.
The defendants insist further that as proved by the testimony of Mr. Ingram a new rental contract was entered into in March, 1930, and that from that time on rent was accruing under a contract made after the mortgage was placed upon the property. But even assuming as testified by Mr. Ingram that Mrs. Maynard agreed to reduce the rent from $150.00 to $100.00 in order to induce Mr. Ingram not to move to another building which he had made arrangements to occupy, still under the law of South Carolina, the right of Mrs. Maynard as landlord would not thereafter be inferior to the interest of the bank as mortgagee. The Supreme Court of this State has held that in such a case the essential thing in the preview of the statute is the relationship of landlord and tenant and not the new agreement to pay a different amount of rent. Morgan Silver Plate Co. v. Bobo Undertaking Co., 107 S.C. 280, 92 S.E., 720.
The opinion in the above-named case, handed down by a unanimous Court, is conclusive as is shown by the following excerpt:
"The tenant went in 1910 and paid $65.00 per month for some years and then $60.00 for nine months of the year 1913, and on January 1, 1914, the rent was reduced to $50.00, upon the understanding that it would be paid promptly on the 1st of each month, and it so continued up until the receivership. The mortgage debt was created March 25, 1913. The rent claim is for November and December, 1914, and January, February, March, and April, 1915. * * *
"The pivotal inquiry, as the appellant asserts, is whether there was a `rent contract entered upon' after the mortgage was made on March 25, 1913. Hammond and Kirby were landlords when the mortgage was made, and a tenancy by Bobo had then been entered upon and continued to the end.
"The words of the statute in the Act of 1899 are `rent contract entered upon', and in the Act of 1898 the words are `contract tenancy entered into.' But we think the intent of the statute was, in effect, to except from the old remedy of distress property that was mortgaged by the tenant before he assumed the actual relation of tenant to the landlord. Such a mortgage creditor is the exception to a general rule, and he must prove the exception.
"While there may have been by operation of law a technical new rent contract starting on January 1, 1914, yet the essential relationship of the parties was not changed; the Bobo Company was in as tenants of Hammond and Kirby when the mortgage was made, and so continued to the end; so that the mortgage creditors took for security a lien on property which was at the time they took the mortgage subject to arrears of rent, and so continued to the end; and the mortgage creditors knew it. Force is loaned to this view by a consideration of the entire Act of 1899. The Act of 1899 is bifold. If the parts of it be divided, it will read thus:
"(1) `In * * * cases where property distrained for arrears of rent is subject to the lien of a mortgage placed upon said property before the rent contract was entered upon,' the mortgage debt shall have precedence of payment.
"(2) `In * * * cases where property, distrained for arrears of rent, is subject to the lien of a mortgage placed upon said property before the * * * said property was brought upon the rented premises', the mortgage debt shall have precedence of payment.
"The numerals are supplied.
"Now the instant case falls under that part of the statute marked 2. A mortgage lien was not placed upon the property before the property was brought upon the premises; on the contrary, so far as the testimony shows, the property was on the premises before any mortgage lien was placed upon it. By the very words of the statute, therefore, the mortgage has no preference over the rent claim."
In view of the above, it seems to me that the difference as to the interpretation of the agreement between Mr. Ingram and Mr. Maynard in March, 1930, is entirely immaterial.
The defendants further claim that the property in dispute was not subject to distress because it did not belong to the tenant in his own right. They base this proposition upon the argument that upon default of a chattel mortgage title passes from the mortgagor to the mortgagee. Therefore, they say that the property distrained belonged not to Mr. Ingram but to the bank. I hold, however, that there is no force to this contention.
Formerly title to personal property passed when it was mortgaged. Now it is more probable that title passes, in this State, only upon default in the mortgage. In either case, however, title is not absolute and the law recognizes a property interest in the mortgagor. In speaking of the rights of the mortgage, 5 R.C.L., at page 463, says: "Of course the title and right of possession are subject to the right of the mortgagor, or his vendee, or a subsequent mortgagee, to redeem before sale, or after sale to an accounting in equity for the surplus, if any after payment of the mortgage debt and interest and the costs and expenses of the foreclosure and sale. It cannot, therefore, be said that the title of the mortgagee after condition broken, is absolute in the strict legal sense of that term; except only that he may preserve and protect his rights under the mortgage."
The defendants have cited General Motors Acceptance Corp. v. Anderson, 172 S.C. 395, 174 S.E., 268, but this case tends to sustain the opinion which I hold. In that case, it was not the default in the mortgage, but rather on executed sale of the property which terminated the interest of the mortgagor so as to destroy the right of distress "This paper, which in effect was a bill of sale, was executed on June 13, four days before the levy of the distress, and vested in the appellant the legal title to the property." (Page 269.) Default in itself was not sufficient to destroy the right of distress; and I hold that, in this case, at the time the property was distrained, it was subject to distress as the property of the tenant, Mr. Ingram.
In view of these considerations, it seems clear that Mrs. Maynard's claim as landlord was superior to the claim of the Bank of Kershaw as mortgagee; therefore, the mortgage is no defense in mitigation of damages.
The next question for consideration is the legal effect of the levy and the sale of this property for taxes while it was in the hands of the claim and delivery plaintiffs, the present defendants. In the demurrer to the complaint and in the bank's answer this sale under the superior lien for public taxes was raised as a defense. But his Honor Judge Townsend, in overruling the demurrer and in striking out the paragraphs of the answer setting it up, held that this sale for taxes was no defense.
It seems clear that his Honor was correct in holding that this was no bar to the action. A claim and delivery plaintiff takes property from the possession of another and gives bond to prosecute, or return. This places upon him the obligation to preserve the property. He is not liable only for negligence; he owes a positive duty to the other party to preserve even if he has to undergo trouble and expense.
In the case of Dehler v. Held, 50 Ill., 491, where the defendant, the obligor on a forth coming or replevin bond, sought to defend on the grounds that the property had been lost to him because of the seizure of it under a mortgage, the lien of which was superior to the plaintiff's claim, the Court said: "As a general rule, where a party binds himself to perform an act, he is held to its performance, except where it is rendered impossible by the act of God or the public enemy. The mere fact that it may be inconvenient, or attended with loss, is no excuse. And that is all that can be said of this obligation. Its performance was in no wise rendered impossible. Meister could have redeemed the property by paying the mortgage debt, and thus have retained it to answer the condition of the bond, as the mortgagee would have been compelled to receive money and discharge the property from the mortgage had he tendered the debt. It was, therefore, within his power to perform the condition of the bond. Having failed to deliver the property as he and his principal had agreed, in law, there was a breach and an action thereby accrued to the plaintiff against the obligors."
In like manner, the Bank of Kershaw having seized this property valued it at $3,500.00 and given bond for it, could not see it sacrificed at a tax sale for $1,176.54, where, indeed, it was bought in by the president of the bank. A positive duty was upon it to pay the taxes if that was necessary for the preservation of the property. The tax sale is not a bar to Mrs. Maynard's right of action. And apparently his Honor Judge Townsend thought that it was not properly to be considered in mitigation of damages.
Judge Townsend struck the plea of the sale under the tax lien from the bank's answer although defendant's counsel sought to justify it as being in mitigation. In so doing the Court cited Garner v. Quackenbush, 187 N.C. 603, 122 S.E., 474, and Id., 188 N.C. 180, 124 S.E., 154. Both reports with annotations, 36 A.L.R., 1095. In that case, the Court on rehearing reversed itself insofar as it had ordered that prior mortgages should be considered in figuring damages against sureties on a replevin bond to prosecute. In the second report, it said in part (page 155): "This Court has held in Randolph v. McGowans, 174 N.C. 203, 93 S.E., 730, that the failure upon the part of a defendant to establish his title makes him a wrongdoer, and, being such, he is not permitted to set up the destruction of the property, while wrongfully withheld from the plaintiff as a discharge of his obligation to return the goods or pay their value and damages. Nor can the defense be available to the surety that the property, for the return of which to the plaintiff upon its being adjudged that the plaintiff was entitled to delivery, belonged to third persons who were not parties to the action."
The theory of this case, and the one apparently relied on by Judge Townsend, is that the plaintiff in replevin, having seized the property replevied under a claim of right, cannot, if his claim fails or he fails to prosecute and establish it, set up the defense in mitigation of damages in an action on the bond, that some third party had a claim superior to that of both parties to the replevin action. To this effect, see also American Packing Co., v. Luketa, 115 Wn., 1, 196 P., 1, reported with annotations at 22 A.L.R., 215.
There is nothing to preclude the application of this rule of law as there is no South Carolina decision on this point. Alderman, Sheriff, v. Roesel, supra, held that upon such a technical breach of the bond as the defendant has committed in this case that the plaintiff was entitled to nominal damages and to such further actual damages as he could prove. There was no question of the independent rights of a third party, but rather of the extent of the sheriff's interest. In Seaboard Air Line R. Co. v. Hewlett, supra, the Court says that recovery on the bond is limited to the damages sustained. In so saying it meant that recovery was limited to the special property interest (claim for demurrage charges) of the plaintiff. Again there was no question of the right of a third party. Mrs. Maynard's claim comes within the limitation of these cases. She does not seek to recover the full value of the property taken from her. All she asks is the value of her special property interest or rent lien; and in accord with the South Carolina cases, this might be awarded her without considering the tax lien and the levy and sale thereunder.
But counsel for plaintiff have requested me to consider the whole of the bank's answer as though no part of it had been stricken, when I came to determine the question of damages in this case. Therefore, I shall consider the tax sale as affecting the damages recoverable by the plaintiff in this case; and I note that there is an alternative rule applicable to the facts of this case which is more favorable to the defendants.
This rule would take into consideration the prior lien or so much thereof as the value of the property replevied exceeded the tax lien.
Now as I have found, as a matter of fact, that the value of the property exceeded the tax lien of $1,176.54, by more than eleven hundred dollars, it seems that according to either rule of law set out above, this plaintiff is entitled to recover $1,100.00 from the defendants, the same being the value of her special interest in this property at the time it was taken from her by claim and delivery
The plaintiff, after giving notice, has asked leave to amend her complaint to ask for interest and I recommend that the prayer of her complaint be amended so as to pray for interest "at the rate allowed by law."
The plaintiff seeks only to amend the prayer of her complaint and it might be argued that the failure to ask for interest was inconsequential because the Court would grant relief which the allegations of the complaint showed to be appropriate. As said by Mr. Chief Justice McIver in Sheppard v. Green, 48 S.C. 165, at page 175, 26 S.E., 224, at page 228: "Besides, this apparent defect appears only in the prayer for relief, and it is well settled that the plaintiffs may obtain any relief appropriate to the case made by the pleadings and evidence, without regard to the form of the prayer for relief."
But I think it is probably preferable to grant the amendment under the authority of Section 494 of the Code of 1932, which allows the Court, in its discretion, to grant leave to amend at any time before or after judgment. Almost the only limitation under this section is that a party shall not take another by surprise. This amendment does not alter the plaintiff's case, and it contains no element of surprise. To grant it merely permits the plaintiff to recover all of the damages which flow to her from the cause of action set up in her complaint.
And I recommend that interest be allowed this plaintiff, such interest being an element of damages for the taking of the property in which she had the special property interest. Mrs. Maynard had a rent lien for $1,100.00 in 1931. To allow her $1,100.00 in 1936 will not make good the loss she sustained by the taking of her property in claim and delivery. The general rule of damages in replevin cases recognizes this.
In 23 R.C.L., under title "Replevin" and sub-title "Persons Having Special Ownership", we find the following:
"Where property is replevied from an officer holding it under execution or attachment, and having no other interest in it than that of the creditor whom he represents, the rule is that if the defendant recovers, and the value of the property is greater than the amount of the execution or attachment, the amount of his recovery is limited to the amount of the execution or attachment, with interest and cost thereon, and if it is less, the damages will be the full value of the property." (Italics mine.)
Section 77. "Measure of Damages Where Goods Retained. The amount of damages which the owner of goods wrongfully taken and retained is entitled to recover in ordinary cases is the value of the property, with damages, which is ordinarily the interest on the value." (Italics mine.)
I would respectfully recommend, therefore, that the plaintiff Eva L. Maynard have judgment against the defendants Bank of Kershaw, T.B. Clyburn and Fred E. Culvern in the sum of Eleven Hundred ($1,100.00) Dollars, with interest thereon from September 11, 1931, to July 1, 1934, at the rate of seven per cent. per annum, and with the interest on the principal sum from July 1, 1934, at the rate of six per cent. per annum, together with the cost and disbursements of this action.
Messrs. Wittkowsky Wittkowsky and John D. Nock, for appellant, cite: Novation: 160 S.C. 441; 9 Cyc., 595. Title: 112 S.C. 248; 141 S.C. 430; 140 S.E., 101; 172 S.C. 398; 141 S.C. 43; 146 S.C. 257. As to lien of mortgage: 172 S.C. 387; 172 S.C. 395; 176 S.C. 499. Damages: 52 S.C. 162; 34 Cyc., 1587; 182 S.C. 509; 31 Cyc., 1606; 94 S.C. 478; 54 C.J., 623; 82 S.C. 196; 52 S.C. 162. Measure of damage for failure to prosecute: 94 S.C. 478; 54 C.J., 623, 627.
Messrs. Spruill Rice and P.A. Murray, for respondent, cite: Review of findings of fact: 162 S.C. 362; 160 S.E., 436; 168 S.C. 516; 167 S.E., 833; 123 S.C. 515; 116 S.E., 101; 30 A.R.L., 248. Exceptions: 114 S.C. 323; 103 S.E., 528; 118 S.C. 93; 109 S.E., 804; 100 S.C. 43; 84 S.E., 368; 99 S.C. 200; 83 S.E., 39. As to priority between landlord and mortgagee: 107 S.C. 280; 92 S.E., 720; 147 S.C. 46; 140 S.E., 247; 161 S.C. 278; 159 S.E., 622.
July 21, 1938. The opinion of the Court was delivered by
This action was commenced in September, 1932, and was brought to recover damages "for the alleged breach of the condition to prosecute the action contained in a bond in a claim and delivery action." By consent, the case was referred to the Master of Kershaw County, with directions to take the testimony and report to the Court on all issues of law and fact. This he did in due time, recommending judgment for the plaintiff for $1,100.00, with interest. On exceptions by the defendants, the matter was heard by his Honor, Judge Bellinger, who confirmed the report and adopted it as the judgment of the Court, stating in a short order that the Master's "findings are amply justified by the law and the facts in this case."
From a careful study of the case as a whole, with especial attention given to the questions stated and argued by counsel for the appellants, we are convinced that the Circuit Judge was right, and we approve the conclusions reached by him. The report of the Master, which this Court adopts as its opinion, will be incorporated in the report of the case. We deem it unnecessary to add anything to what is there said.
The judgment of the Circuit Court is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.
MR. JUSTICE CARTER did not participate on account of illness.