Owens v. Gentry

The opinion of the court was delivered by

Mr. Justice McGowan.

This was an action of claim and delivery of personal property, viz., forty bushels of corn worth $30, and five hundred and fifty bundles of fodder, worth $8.25, and one lock and key, worth $1.00. The defendants answered that, as sheriff and deputy sheriff for Spartanburg, they took the property claimed by virtue of an agricultural lien warrant issued by the clerk of the court (Trimmier) at the instance of the “Ashe-poo Phosphate Company” of Charleston, against William R. Owens, the husband of the plaintiff, and had sold the same and applied the proceeds to the agricultural lien debt aforesaid — denying that the property was seized wrongfully or maliciously or violently, but in the discharge of their official duty ; and denying that the property belonged to the plaintiff or that she had any interest therein.

The cause came on for trial before Judge Wallace, when it appeared that the property, corn and fodder, taken, was a part of the crop raised on the place upon which W. R. Owens and his family resided; that the land (118 acres) belonged to W. R. Owens, but the year before had been conveyed to his wife, the plaintiff, “in consideration of five dollars, and the services which, during their married life, she had rendered” to the grandor, her husband; that Owens, the husband, by authority of his wife, rented in his own name part of the land to one Bishop upon shares in the crop, and cultivated the remainder himself for the year 1886 ; that on May 22, (1886) W. R. Owens, in his own name, entered into an agreement in writing with the “Ashepoo Phosphate Company,” and thereby promised to pay them, on or before October 15, 1886, the sum of $77.84, for fertilizers delivered, “to be used by him, the said Owens, in making crops during the current year on lands cultivated by him, known as his, and belonging to himself;” and to secure said debt, Owens gave the company a lien on all crops raised on said lands during the year 1886.

On December 29, 1886, C. S. Greenleaf, the agent of the Ashepoo Company, made an affidavit, “That deponent has been informed and believes that the said W. R. Owens is disposing of his said crops, with the intention of defeating the lien of said company, and that his reasons for his belief are as follows : that the said W. R. Owens has sold, as deponent is informed and believes, several bales of cotton raised on said lands in 1886 — the deponent does not know the exact number — and has applied none of the proceeds of said sales to the payment of said lien debt; that some time in November, 1886, he promised deponent to pay atdeast a part of said debt, fixing the day therefor, but failed to come and make such payment; after making said promises he sold, as deponent is informed and believes, a part of his said crop,” &c. (See affidavit in Brief.) Thereupon the clerk of the court issued the agricultural warrant, under which the defendants took the property sued for.

The plaintiff requested the judge to charge: (1) That the affidavit in evidence was not sufficient to authorize the issuance of the warrant, and such warrant was null and void. (2) That the sheriff, in proceeding to enforce agricultural liens, acts at his peril if he attempts to enforce a lien upon a warrant not supported by sufficient affidavit, such affidavit having been previously brought to his knowledge. Under a full and lucid charge, the jury found a verdict “for the defendants”; and the plaintiff, having failed in a motion for a new trial, now appeals upon the following grounds of alleged error: “1. In allowing the defendant, on cross-examination of plaintiff’s witness, to put in evidence the agricultural lien, warrant, and the papers attached thereto. 2. In allowing in testimony the contract between W. R. Owens and Sandford Bishop. 3. In charging that if the jury were not satisfied by the preponderance of the testimony that the property was the plaintiff’s, then, of course, she was not entitled to recover. 4. In prescribing, as he did, the form of the verdict the jury should render. 5. In refusing to charge that the affidavit in evidence was not sufficient to authorize the issuance of the warrant, and that such warrant was null and void. 6. In refusing to charge that the sheriff, in proceeding to enforce agricultural liens, acts at his peril if he attempts to enforce a lien upon a warrant not supported by a sufficient affidavit, such affidavit being previously brought to his knowledge. 7. In refusing to grant the motion for a new trial.”

As to the first exception, the defendants, sheriff and deputy, took the property officially under a warrant regularly lodged. The plaintiff, in order to prove her case, put up as a witness the deputy sheriff, who proved the seizure and sale, and, upon cross-examination, said, “The lien warrant I hold in my hand was my authority for making the levy.” Plaintiff’s attorney objected, and the judge said, “He can identify and prove a paper, and in that way put the paper in evidence. He can make out his whole case by this witness, if possible.” The warrant and record under which the sheriff acted was certainly admissible in evidence, and the only point involved was as to the time when it could be introduced. We do not see why the warrant and the whole record could not be proved on the cross-examination of one of plaintiff’s witnesses. In great strictness, the matter proved was merely part of the case for the defendants, to be read and considered with their evidence; but that did not prevent the proof upon cross-examination. The English rule upon the subject prevails in this State. Kibler v. McIlwain, 16 S. C., 554; Dillard v. Samuels, 25 Id., 822.

Second. We do not see why the rent note of Bishop to W. R; Owens was not admissible. The point in issue was, whether the plaintiff, Mrs. Owens, allowed her husband, W. R. Owens, as her agent, to manage the land in all respects, as his own, and, as he said himself, “just the same as if it belonged to him” ; to rent it to others, or to cultivate it himself. Upon that issue it was “relevant” to prove that W. R. Owens rented to another, in his own name, a part of the very land he had conveyed to his wife, and a part of which, with the concurrence of his wife, he cultivated himself. He could not cultivate the land as a lessee, and at the same time deny his lien on the crop for fertilizers.

Third. We do not think it was error to charge, “that if the jury were not satisfied by the preponderance of the testimony that the property was the plaintiff’s, then, of course, she was not entitled to recover.” As a general rule, certainly, parties are only allowed to recover property which belongs to them. We do not think this case analogous to that of the chimney sweeper’s boy, who found a jewel, and was held to be entitled to recover it in an action of trover against all but the true owner. There was no clear and exclusive possession in the plaintiff here. The title of the land was in her name, but she lived with her husband and permitted him to make a crop upon it on his own account; and the jury may very well have concluded that the crop was in the possession of the husband, who made it, and in doing so had placed a lien upon it for fertilizers. He cannot be permitted to give a lien upon the crop as his own property with the knowledge of his wife, and then claim that it belongs to her, and she never authorized that contract.

Fourth. “That the alleged lien warrant was wholly irregular, insufficient, and void, and could not protect the defendants in acting under it, and their proceedings were at their peril.” It might be enough to say that this question was not considered by the judge below, although he was requested to charge upon the subject; for the reason,.as we suppose, that the defendant himself did not make the objection, but it was made by a stranger to that proceeding. If, however, VV. R. Owens himself were before the court and making the objection, we do not think it could be sustained. The affidavit of Greenleaf, the agent, was never controverted. It was very full, giving his reasons for the belief, that the said W. R. Owens “is disposing of his said crop with the intention of defeating the lién of the said company.” See Monday v. Elmore, 27 S. C., 131, in which the Chief Justice said: “It must be remembered that this was a proceeding upon an agricultural lien, and while this lien law does provide that the affidavit for a warrant of seizure in such cases should “conform as nearly as may be” to the practice in ordinary attachments, yet there is this material distinction between the two: In attachment cases, there is no lien on the property attached, which it is.intended to enforce, and consequently the mere disposition of the property might not, in itself, perhaps, be a sufficient statement, showing the intent to defraud. But in agricultural contracts there is a lien, and a statement, that the debtor is disposing of his property to defeat this lien, contains facts bearing directly on the intent,” &c.

Fifth. We are unable to see that the judge erred’“in prescribing,” as he did, the form of the verdict, and in refusing a motion for a new trial. The verdict in an action “for claim and delivery of personal property,” is somewhat long and out of the usual course, and to all but lawyers needs to be explained. We think the judge did right in giving to the jury the form, and that the form given was correct.

We cannot say that he committed error of law in refusing to grant a new trial.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.