March 4, 1924. The opinion of the Court was delivered by The appellant states the case thus:
"The respondent, Knight, gave the appellant, Bennett, a chattel mortgage upon five mules prior to the commencement of this action. This mortgage being in default, the appellant took possession of the five mules. Discovering that two of the mules were covered by a prior mortgage, the appellant released these, and retained possession of the other three. Then the respondent brought this action, in form a claim and delivery, for the possession of these three mules, or the value thereof with damages. The appellant for answer filed a general denial, and the case came on to be heard before Judge Memminger with a jury. After hearing the testimony, the argument, and a charge from the Court the jury rendered a verdict in favor of the plaintiff-respondent for the three mules, or for $400.00, the value thereof. A motion for a new trial was made and refused; and the defendant-appellant now brings the case to this Court for review."
Appellant has eight exceptions.
The first three exceptions complain that his Honor erroneously ruled that the breached chattel mortgage could not be offered in evidence because the answer *Page 110 contained only a general denial, whereas, such mortgage should have been set up by an affirmative plea. The record shows that as a matter of fact this mortgage was finally admitted in evidence by his Honor, and the issue of the ownership of mules by Bennett under the mortgage was submitted to the jury.
The fourth exception is overruled. At one time his Honor did indicate that he would not submit the question of ownership of the mules to the jury, because, under the pleadings, he did not think this was an issue in the case, but later he changed his opinion, and in his charge squarely submitted to the jury the question of ownership of the mules. Exception 5 is overruled, because the Judge in his charge told the jury that, if Bennett had a valid mortgage which was overdue and unpaid, Bennett had the right to take the mules.
The sixth exception is overruled. It is not a question of reformation of a deed, but the question was whether the mules were included in the mortgage. The defendant put in evidence the mortgage to show he was the owner of the mules. In reply the plaintiff attacked the mortgage on the ground of fraud which would leave the ownership in the plaintiff if the jury believed there was fraud. This procedure is well established under the decisions of this Court. The later cases are Fass v. InsuranceCo., 105 S.C. 364; 89 S.E., 1040. Military Art Novelty Co. v. Fayonsky, 113 S.C. 473; 101 S.E., 818.
Exception 7 is overruled, as the jury found only actual damages, and appellant was not prejudiced by the charge of his Honor as complained of.
Exception 8 is overruled, for the reason that his Honor committed no error.
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES FRASER, COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY did not participate. *Page 111