March 18, 1901. The opinion of the Court was delivered by Plaintiff sued defendants in the magistrate's court in claim and delivery of a mare called "Sallie," valued at $50. At the trial, defendant entered a general denial. After hearing testimony on both sides, the magistrate rendered judgment in favor of defendants. An appeal was taken from this judgment to the Court of Common Pleas for Williamsburg County. The appeal came on to be heard before his Honor, Judge Gage, who gave judgment in favor of plaintiff, thereby reversing the judgment of the magistrate. The text of the decision of the Circuit Judge is as follows: "This is an appeal by plaintiff from the judgment of a magistrate. The suit is for the recovery of the possession of a roan mare, called `Sally.' The defendants had seized the mare claiming her to be covered by a mortgage from one Calvin Cooper to defendants, dated in January, 1898; and the defendants had sold her to another person before the commencement of this action. The defendants' mortgage describes not a roan, but a bay mare. There was much controversy in the testimony about whether this mare in dispute is a roan or a bay in color. And if that was the sole issue, I should not disturb the judgment. But plaintiff claims under a mortgage made to him by Calvin Cooper in February, 1900. I am satisfied from the testimony that the mare in issue, whatever be her color, was not owned or possessed by Calvin Cooper in January, 1898, when he mortgaged certain stock to defendants; but he secured her some time thereafter. If this be so, defendants' mortgage cannot cover her. The defendants made the question that the court had no jurisdiction of the subject matter, because it (the mare) had passed from the ownership and possession of defendants before suit brought. The defendants converted the title when they sold her wrongfully, *Page 105 and action lies against them for the mare, or her value.
"My judgment is, that the judgment of the magistrate be reversed, and that plaintiff have judgment for the mare, or her value, to wit: $50."
From this judgment of the magistrate defendants now appeal to this Court on the following grounds:
"Because his Honor erred in holding as follows: `I am satisfied from the testimony that the mare in question, whatever be her color, was not owned or possessed by Calvin Cooper in January, 1898, when he mortgaged certain property to defendants, but that he secured her some time thereafter. If that be so, defendants' mortgage cannot cover her.' Whereas, he should have held that although he was satisfied that Calvin Cooper did acquire the mare some time (about six weeks) after the making of the mortgage to Poston Son, yet she was in fact and law covered by the mortgage to Poston Son.
"II. Because his Honor erred in holding as follows: `The defendants made the question that the court had no jurisdiction of the subject matter because it (the mare) had passed from the ownership and possession of defendants before suit brought. The defendants converted the title when they sold her wrongfully and action lies against them for the mare or her value.' Whereas, he should have held that the mare in dispute having passed from the possession of the defendants before suit brought, the action for claim and delivery did not lie against defendants for the possession of the chattel."
We will now consider the exceptions in their order. We cannot sustain the first ground of appeal, because the court of magistrate is by sec. 21, of art. V., of our present State Constitution, denied all jurisdiction in chancery cases. So that we must view the judgment of the Circuit Court as covering only claims at law, and not in equity, set up in this action brought in a magistrate's court. This being so, the view which was so ably presented by the appellant's attorney, that although the mare in question was *Page 106 not owned by Calvin Cooper when in January, 1898, he executed his mortgage to Poston Son (the appellants here), yet he intended to include her in said mortgage, and equity will enforce such intention though not embodied in the instrument itself cannot be maintained. The Circuit Judge found as a fact that Calvin Cooper did not own the mare and did not include the same in the mortgage to defendants. As was well said by Chief Justice McIver, in Parker v. Jacobs,14 S.C. 114: "There can be no doubt that the rule atlaw is that it is necessary to the validity of the mortgage that the mortgagor should have a present property, either actual or potential, in the thing mortgaged," citing 1 Jones on Mortgages, sec. 149.
The second exception cannot be sustained, because the Circuit Judge has found as a fact that the defendants wrongfully sold her (the mare), and this being his conclusion of fact (over which finding of fact we have no control), it causes this case to fall into the class of cases, such asLadson v. Mostowitz, 45 S.C. 388; Dudley Caston v. Green, 46 S.C. 199; Finley v. Cudd, 42 S.C. 122 — where a judgment for the property in dispute, or its value in case a non-delivery cannot be had, was sustained even where the defendants had sold the property before suit brought.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed and the action be remanded to enforce such judgment of the Circuit Court.
MR. JUSTICE JONES concurs in affirming the judgment ofthe Circuit Court.