The plaintiff sued the defendant for the proceeds of seven bales of cotton grown and gathered by the defendant upon a small parcel of land in 1912. The plaintiff's right is rested upon a chattel mortgage *Page 401 of the cotton, made in January, 1912, by the then owner, Bates, to secure a loan of $150, then made by Kendrick to Bates, for purposes not disclosed by the testimony. The answer is a general denial. Bates was overwhelmed with debt; he had made four mortgages on his small farm, three of which Moseley owned; and in February, 1912, he put Moseley in charge of his land and departed. There was nothing else for him to do. Moseley cultivated the lands that year and thereon grew the seven bales of cotton in dispute. In the fall of 1912 the mortgages were foreclosed; and the price thereof, with the price of the seven bales of cotton, did not satisfy the four mortgage debts. The plaintiff claimed the proceeds of the seven bales of cotton by virtue of his chattel mortgage thereon. The defendant claimed the proceeds of the seven bales of cotton by virtue of his position with reference to the land, to wit, a mortgage creditor in possession thereof. The master reported in favor of the plaintiff. The report was confirmed in a formal order. The defendant appeals.
There are nine exceptions, all charging errors of law, but there are not nearly so many real issues made. The prime contention of the defendant is based upon the doctrine, well established, and announced in Sims v. Steadman, 62 S.C. 304,40 S.E. 677; and that is, when a mortgage creditor comes rightfully in possession of the mortgaged premises, neither the mortgagor nor one who claims under him may put the creditor out of possession, but may only redeem. The whole argument of appellant's counsel is made to sustain that contention, and no more. Of course, the doctrine contended for is sound, but it is not germane to the facts of this case. The plaintiff does not seek to oust the defendant from mortgaged land. The plaintiff is not, and has never been, the owner of the land. The plaintiff is not after the land or the proceeds of sale thereof.
The position of the parties is this: Kendrick got a legal statutory lien on the crop, and it was first in point of time to *Page 402 any claim Moseley got subsequent thereto. Kendrick is not able to enforce that lien except by the aid of a Court of equity, and that he now asks. Paragraph 4, complaint. Moseley got thereafter a rightful possession of the land, and the crops which issued thereout, and which last was created by labor supplied by third parties and by live stock and fertilizer supplied by Moseley; and Bates is yet Moseley's debtor. Each party knew the circumstance of the other. Kendrick's right is legal only; Moseley's right is equitable only. But Kendrick cannot enforce his right except at the hand of a Court of equity; and that he now expressly asks. It is plainly a case for the application of the maxim of equity, "He who seeks equity must do equity."
It is conceded on all hands, and was so conceded below, that one-half the proceeds of the seven bales of cotton must go to the laborers who made it. What is Moseley's equity in the other half?
He finds it in his hands subject to a mortgage. His land mortgage creates no lien upon it, neither does his possession of it. He may not keep it, therefore, to pay his debt. But Moseley produced the cotton. Without him it would not have been. Manifestly it would not be just to require him to turn it into Kendrick's hands until he had taken out of it that which it cost to make it; and, under the testimony, that is the service of the live stock and implements which cultivated the crop, and the cost of the fertilizer which stimulated the crop. It is not clear that this question was made below, but some of the exceptions seem wide enough to cover it, and it is the justice of the case.
The cause ought to be remanded to the Circuit Court, to make inquiry about the matters indicated, and then to make an order in conformity with the law as herein stated. In all other respects the judgment ought to be affirmed.
MR. JUSTICE WATTS concurs in the dissenting opinion. *Page 403