April 21, 1914. The opinion of the Court was delivered by We will first discuss the defenses in regular order. (The first defense is a mere denial.)
Second defense: The only testimony introduced to sustain this defense was to the effect that J.J. Jeffcoat executed a mortgage in favor of A.F. Dicks, dated 4th December, 1909, on the lot of land described in the complaint, and that the defendant had no notice of said mortgage at the time the policy was issued. *Page 200
His Honor, the presiding Judge, upon the request of the defendant, charged the jury as follows: "That if you find that Mr. Jeffcoat concealed or misrepresented any material fact or circumstance concerning the insurance, or the subject thereof, then Mr. Rawl is bound by such concealment or misrepresentation, and he cannot recover from the company."
It will thus be seen that the verdict of the jury disposed of this defense.
Third defense: The mortgage in favor of A.D. Dicks covered the said land, "with all improvements thereon situate."
His Honor, the Circuit Judge, charged the sixth and eighth requests of the plaintiff, which were as follows:
"(6) The jury is charged that the forfeiture clause in the policy, which has been introduced in evidence, based upon the existence of mortgages upon insured property, provides for a forfeiture, `if the subject of insurance be personal property, and be or becomes incumbered by a chattel mortgage.' The jury is charged that under this forfeiture clause that the existence of a real estate mortgage upon the property does not of itself work a forfeiture of the insurance."
"(8) If the jury finds that the articles in question savor of realty, being guided by all the testimony that they have heard upon the witness stand, and were incumbered by a real estate mortgage, then the jury is charged that the existence of said real estate mortgage does not work a forfeiture of the policy of insurance."
The question whether the words "all improvements thereon situate' embraced the property covered by the mortgage executed by Jeffcoat in favor of the plaintiff depended upon the fact whether it was to be regarded as real or personal property.
In the case of Padgett v. Cleveland, 33 S.C. 339,11 S.E. 1069, this Court recognized the following as a correct *Page 201 definition of a fixture: "A fixture is an article which was a chattel, but, by being physically annexed to the realty by one having an interest in the soil, becomes a part and parcel of it." Mr. Justice McGowan, who delivered the opinion of the Court in that case, uses this language: "We think * * * the general statement may be safely made that in the later cases there has been a decided relaxation as to the original rule of the common law * * * governing the freehold, and that this modern relaxation has been effected chiefly in favor of trade. * * * Besides this confusion in he law * * * and whether an article of personal property has been so annexed to the soil as to make it a permanent fixture, and as such not movable, is always a mixed question of law and fact."
In Hughes v. Shingle Co., 51 S.C. 1, 28 S.E. 2, the Court quotes with approval the following statement of the rule: "Where a structure is placed upon land, not to promote the convenient use of the land, but to be used for some temporary purpose, external to the land, and the land is used only as a foundation, because some foundation is necessary for the business, then the structure and its belongings are not fixtures."
These authorities are quoted with approval in the case ofHurst v. Craig Furniture Co., 95 S.C. 221, 78 S.E. 960, which concludes as follows: "The great confusion in regard to the law of fixtures has arisen from the effort to construe that as a fixture in one case because it was so regarded in other cases. A fixture involves a mixed question of law and fact. It is incumbent on the Court to define a fixture; but whether it is such in a particular instance depends upon the facts of that case, unless the facts are susceptible of but one inference. In modern times the question whether the article is to be regarded as a fixture depends generally upon the intention of the parties in the particular case." *Page 202
These cases show that the question whether the articles described in the Dicks mortgage were to be regarded as real or personal property was properly submitted to the jury.
Fourth defense: The proposition for which the appellant's attorneys contend is thus stated in their argument: "That when Rawl, the mortgagee, assigned by absolute assignment, without recourse, his interest in the notes and mortgages to H.M. Sawyer, he parted with all his interests, if he had any interest at all, or claim against the insurance company, and that any such interest thereby became extinguished."
The first question that will be considered is whether the assignment upon its face, or in the absence of other testimony, was sufficient to transfer to the assignee the claim of the plaintiff, which arose under the policy of insurance.
The rule is thus stated in 27 Cyc. 1298, 1299: "A formal and valid assignment of a mortgage and debt which it secures will generally invest the assignee with all the rights, powers and equities possessed by the mortgagee, including the benefit of any collateral undertaking, obligations, or security, which constitutes a part of the mortgage security, any covenant to pay the mortgage debt, any right which the mortgagees may have as to receiving the rents and profits, any benefit from existing insurance, or the proceeds of the policies; as also the benefit of any entry or possession on the part of the mortgagee any right or priority possessed by the mortgagee and the right in equity to have it reformed by the correction of a mistake or omission.
The general principle is thus announced in 2 Enc. of Law 1084: "By a complete assignment of a chose in action, the whole interest of the assignor, in the thing assigned, passes to the assignee, and also the security for the debt, for it is a familiar and well settled rule of law that the assignment of a debt carries with it every remedy and security for such debt available by the assignor as *Page 203 incident thereto, although they are not specially named in the instrument of assignment."
This doctrine is recognized by the other cases cited in the argument of the appellant's attorneys, including the following cases from this State: Wright v. Eaves, 10 Rich. Eq. 382; Muller v. Wadlington, 5 S.C. 342; Lynch v. Hancock,14 S.C. 66; Wilson Co. v. Dean, 21 S.C. 327. These authorities show that the assignment was sufficient in form to transfer the insurance claim to the assignee, and that it was not thereby extinguished.
The next question that will be determined is whether the consideration upon which the assignment was made could be shown by parol testimony.
The form of the assignments was as follows: "For value received, I hereby transfer all of my rights and title to the within note and mortgage, * * * without recourse."
It will be observed that the only consideration stated in the assignment was "for value received."
"The rule that the written agreement is conclusively presumed to contain the whole contract, and that it cannot be shown by parol that other things were agreed on at the same time, is not applicable to instruments which, from their very nature, do not purport to state the entire agreement in respect to the subject matter, but are adapted merely to transfer title in execution of an agreement which they do not profess to show. Of this class of instruments are assignments of choses in action, bills of sale. * * *" 21 Ency. of Law 1093.
The following cases in this State show that, when the consideration is stated to be for "value received," or the writing does not purport to state the consideration in full, parol evidence is admissible to show the true consideration.McGrath Byrum v. Barnes, 13 S.C. 328, 36 Am. Rep. 687; Chemical Co. v. Moore, 61 S.C. 166, 39 S.E. 346;Williams v. Salmond, 79 S.C. 459, 61 S.E. 79; Holliday v. Pegram, 89 S.C. 73, 71 S.E. 367, Ann. Cas. 1913A, 33. *Page 204
Fifth defense: There is no doubt as to the proposition contained in this defense; but the right of subrogation does not arise until the claim is paid. The plaintiff does not dispute this right, nor was it in his power to deprive the defendant thereof, when the notes and mortgages were assigned. It is a right that arises by operation of law, and any one to whom property is assigned takes it subject to the right of subrogation, if the property in the hands of the assignor would have been subject to such right.
Sixth defense: In regard to this proposition, it is only necessary to say that the policy was not canceled as to the plaintiff, and, if the defendant did not see fit to give him proper notice of cancellation, there is no just reason why he should be required to return the unearned premium, paid to Jeffcoat.
The foregoing are the only defenses upon which the defendant relied.
These conclusions practically dispose of all questions properly before the Court for consideration, except one, to wit: Was there error on the part of his Honor, the presiding Judge, in charging the jury that they could find a verdict for the interest?
The policy provides that the insurance shall not fall due until the expiration of 60 days after the filing of proper proofs of loss. The jury, under a charge of the Circuit Judge, rendered a verdict in favor of the plaintiff for $1,130.66, which included interest after the expiration of 60 days from the time of filing proofs of loss.
The complaint alleges that the plaintiff "has been damaged by the destruction of the property so insured in the sum of $1,000, and the prayer is for judgment for the sum of $1,000 and the costs and disbursements of the action.
The case of Straub v. Screven, 19 S.C. 445, shows that the plaintiff could not recover a larger amount than *Page 205 that for which he demanded judgment, and therefore that the ruling was erroneous.
As the amount of interest allowed is certain, it will not be necessary to remand the case for a new trial, unless the plaintiff should refuse to remit the interest.
It is the judgment of this Court that the judgment of the Circuit Court be reversed, unless the plaintiff shall remit upon the record the amount included as interest within 10 days after the remittitur shall have gone down, but that, if said amount is remitted, the judgment shall stand affirmed.