July 19, 1917. The opinion of the Court was delivered by This case has been to this Court before, and will be found in 100 S.C. 371, 84 S.E. 1001. It is an action in claim and delivery.
The plaintiffs claim a right to the possession of two mules, by virtue of a mortgage by one C.L. Angel to the plaintiffs. The defendant bought the two mules in question from one Richardson. In the first instance the defendant answered, claiming that Angel was not the real purchaser of the mules and had never had the possession of them, nor claimed to own them. On the first trial the presiding Judge allowed the defendant to prove that the had searched the record for mortgages executed by Richardson, from whom defendant bought the mules, and this was held in this Court to have been error. The second error alleged was in a charge that if the plaintiff in fact sold the mules to Richardson and not to Angel, then the record of the Angel mortgage was not notice to a subsequent purchaser for value. The error alleged was that the charge was not applicable to the facts proven in the case. This exception was sustained, and a new trial was ordered.
1. Before the second hearing, the defendant made a motion to amend its answer by setting up fraud, in that the mortgage was made by a secret agreement between Richardson, the mortgagees, Brown and Stribling, and the mortgagor, Angel, and was only pretensive and made with the purpose of allowing Richardson to deceive those with whom he dealt and conceal from the public that there was a mortgage covering the mules. When this motion was made, Judge Sease was presiding and with that fairness and fearlessness that characterizes him, said: *Page 107
"Court: Well, gentlemen, I will have to refuse the motion, and I will not put it as a matter of discretion, Mr. Earle; I will put you in a position so the other side can't say the Judge in his discretion refused it, but I put it on the ground that, even if it was true, every word of it in this case — I am talking as to this fraudulent agreement — even if that was true, every word of it, I hold, and for that reason I refuse, the motion to amend in that particular because it is absolutely no defense to the action. And I will not put it on the ground in my discretion that it comes too late. In other words, I want the road wide open for you to go to the Supreme Court, if you wish to do so."
From this refusal, the defendant has appealed. His Honor was mistaken in the ruling of this Court. The exceptions in the former case were not based on the idea that the ruling of the presiding Judge was bad law, but that the charge was not applicable to the undisputed facts, and, therefore, misleading. Fraud was not charged before, and the facts from which fraud could be inferred were not proven. If the plaintiffs, Richardson and Angel, had a secret agreement to deceive the public, and in pursuance of that agreement took the mortgage in the name of a third person, then the mortgage was void and its record not notice to subsequent purchasers. There are too many black mules and gray mules in the land to require a prospective purchaser to take notice of them all. It is true there can be no absolute protection for the purchaser of live stock, but human law affords protection to the honest mortgagee, but it does not extend protection to fraudulent mortgagees, and this Court did not so hold. The defendant had the right to move to amend and to submit that motion to the discretion of the Circuit Judge, and there was error in not exercising his discretion.
2. The other exceptions are based upon the idea that the defendant had proven tender. There was no evidence of tender. The defendant said to the mortgagee, "if you are *Page 108 going to take those mules, take them now before I fatten them." That is not tender, and nothing like it. There was no offer to surrender the mules. We have been cited to no authority, and we know of none, that holds that a lienee can be required to enforce his lien at a time to be appointed by another, on pain of a forfeiture of his lien.
3. The appellant appeals from the order requiring him to print the whole record. This was a violation of the rule; but, inasmuch as the respondent must pay all the costs and disbursements of this appeal anyway, there is nothing further for this Court to do.
The judgment is reversed, and the case is remanded to the Circuit Court, with leave to the appellant to submit his motion to amend to the discretion of the presiding Judge.