June 24, 1905. The opinion of the Court was delivered by This is an appeal from an order granting a temporary injunction refusing the defendant's motion to strike out certain allegations of the complaint as irrelevant; and, also, refusing to require the plaintiff to elect upon which cause of action he would proceed to trial.
The questions presented by the exceptions render it necessary to refer to the complaint, which will be set out in the report of the case. Briefly stated, it alleges that the plaintiff, *Page 29 in pursuance of an agreement that the defendant made to him advances of fertilizers during the year 1904, for the purpose of enabling him to make his crops; that the defendant "agreed then and there that said crops, so grown by him during the current year and whereon he proposed and did use the fertilizers hereinafter set forth and described, should be a security or pledge for said advances in favor of said plaintiff, and to this end defendant agreed to execute to the plaintiff such security upon said crops, together with the chattel mortgage on certain and sundry live stock hereinafter set forth and described;" that the amount due for the advances of fertilizers "was secured to be paid to the plaintiff on or before the 15th of October, 1904, by an agricultural or other lien or security upon said crops to be planted upon said place as aforesaid, together with the chattel mortgage or bill of sale of the defendant's stock," described in the complaint; that the plaintiff complied with his part of the contract, but that the defendant refused to perform his obligation thereunder.
The plaintiff seeks the equitable remedy of foreclosure. On the 13th of February, 1905, his Honor, the Circuit Judge, granted an order requiring the defendant to show cause, on the 16th of March, 1905, why he should not be enjoined from disposing of the property described in the complaint, and in the meantime restraining him from disposing of the same.
The defendant anticipated the hearing upon the rule to show cause by giving notice of a motion for the following relief:
"1st. For an order to vacate and set aside the injunction or restraining order herein granted, on the 13th day of February, 1905, whereby the defendant was restrained and enjoined from selling and disposing of the property, mentioned and described in said complaint, on the ground that no bond or undertaking was exacted of the plaintiff, as required by the laws of the State of South Carolina in such cases made and provided. *Page 30
"2d. That inasmuch as the complaint attempts to state two causes of action, one for legal relief to recover the value of certain commercial fertilizers, as therein stated, and the other for equitable relief to adjudge an alleged agreement of the defendant with the plaintiff to be an equitable lien on the property mentioned and described in the said complaint, the defendant will, therefore, ask his Honor for an order to require the said plaintiff to so amend his complaint as to state each of the said causes of action separately, or that he be required to elect upon which cause of action he will proceed to trial.
"3d. That the plaintiff be required to strike out paragraphs 1, 2, 3 and 4 of the said complaint as irrelevant, each and every allegation or reference made to the crops raised or grown by the plaintiff on the said plantation, known as the Holman place, in that this Court cannot decree the specific performance of a lien on such crops, or declare a promise, as alleged, to be an equitable or other lien thereon, as such order or decree would be in contravention of the statute laws of the State of South Carolina.
"4th. That the plaintiff be required, when said causes of action are separated, to make his complaint more definite and certain, by stating whether the agreement, alleged to have been made between the plaintiff and defendant, was in writing or verbal; whereby it is claimed that the defendant agreed to give to the plaintiff a mortgage or bill of sale over the live stock described in the complaint."
On the 8th of March, 1905, the Circuit Judge refused the motion, and further ordered that the temporary restraining order theretofore granted should be continued in force until the further order of the Court, provided the plaintiff entered into an injunction bond in the manner therein prescribed. The plaintiff complied with this requirement.
The first exception assigns error in refusing the relief sought by the defendant, on the first ground mentioned in his motion. Section 244 of the Code provides that "if the Court or Judge deem it proper that the defendant, *Page 31 or any of several defendants, should be heard before granting the injunction, an order may be made requiring cause to be shown, at a specified time and place, why the injunction should not be granted; and the defendant may, in the meantime, be restrained."
This section recognizes the distinction between an order granting an injunction proper and an order simply restraining the defendant, until the Court can determine whether the plaintiff is entitled to an injunction. The Code does not make it the duty of the Judge to require an undertaking on the part of the plaintiff, before hearing the return to the rule to show cause, although a restraining order was granted in the meantime. This exception is overruled.
The second exception raises the question whether there was error in not granting the relief for which the defendant asked, in the second ground of his motion. Our construction of his complaint is that it states but a single cause of action. The Circuit Court, in the exercise of its chancery powers, has the right to ascertain the value of the fertilizers. Ex parte Landrum, 69 S.C. 136;Pratt v. Timmerman, 69 S.C. 186. This exception cannot be sustained.
The third and fifth exceptions assign error in not granting relief upon the third ground set forth in the motion. The motion failed to specify the particular allegations which the defendant desired should be struck out as irrelevant. We will, therefore, discuss their general effect upon the cause of action.
It is true, that an agreement to execute an agricultural lien cannot be construed as an equitable mortgage, nor can it be made the basis of an equitable right. Cureton v. Gilmore,3 S.C. 46; Moore v. Byrum, 10 S.C. 452; Sternberger v. McSween, 14 S.C. 35; Kennedy v. Reames, 15 S.C. 548;Carpenter v. Strickland, 20 S.C. 1.
But under our construction of the complaint, especially in view of the facts set out in the first paragraph, the allegations which the defendant made a motion to strike out are *Page 32 relevant to the extent of showing that the plaintiff had an equitable mortgage on the crop. An agreement that specific property shall stand as security for the payment of the debt creates a mortgage; and a promise to give a mortgage on certain chattels, has the effect of impressing such property with an equitable lien, although it is merely verbal. Moore v. Byrum, 10 S.C. 452; Davis v. Childers, 45 S.C. 133,22 S.E., 784; Avery v. Wilson, 47 S.C. 78, 25 S.E., 286;Read v. Gaillard, 2 DeS., 552; Dow v. Ker, Sp. Eq., 413;Massey v. McIlwain, 2 Hill's Ch., 421; 3 Pom. Eq. Jur., sec. 1235.
Property not in esse may be the subject of an equitable mortgage, and is impressed with a lien as soon as it comes into existence. Moore v. Byrum, supra; Parker v. Jacobs,14 S.C. 112; 3 Pom. Eq. Jur., sec. 1236; 5 Enc. of Law, 982. These exceptions must be overruled.
The fourth exception alleges error in not giving the relief sought in the fourth ground mentioned in the motion. It sufficiently appears upon the face of the complaint that the agreement was only verbal. This exception is also overruled.
It is the judgment of this Court, that the order of the Circuit Court be affirmed.