Avery v. Wilson

The opinion of the Court was delivered by

Mr. Justice Gary.

The above entitled action was commenced in the Court of Common Pleas for York County on the 4th day of May, 1894, and was heard by his Honor, Judge Townsend, at the November (1895) term of said Court. All the testimon}'-, except that of John E. Ancrum, had been taken before his Honor, Judge Aldrich, at the November (1894) term of said Court, and it was published before his Honor, Judge Townsend, subject to admissibility under the exceptions made before both Judges. On the 16th of January, 1896, Judge Townsend filed his decree, which, together with appellants’ exceptions, will be set out in the report of the case. The respondents gave notice of additional grounds upon which they would ask that said decree be sustained, but withdrew such notice. It is admitted that the decree properly and sufficiently sets out the issues presented bj^ the pleadings, and that it correctfy states the judgment claims of the plaintiffs. Paragraph 1 of the first exception was withdrawn. The other parts of said exception will now be considered.

1 The first question arising under paragraph 2 of the first exception is, whether it was error on the part of the Circuit Judge, in excluding the judgment roll of Marshall, Wescoat & Co. v. E. A. Crawford, offered by the defendant. The following memorandum of argument appears in the “Case:” “At the conclusion of defendant’s testimony, offered at the hearing before Judge Townsend, defendants closed, reserving the right to take and offer additional testimony at any time within thirty days from to-day. Plaintiffs consented to the additional testimony being taken and offered, but reserved the right to reply to such additional testimony at any time within fifteen days from the expiration of said thirty days. The above testimony offered by defendants at hearing embraced the judgment roll of Marshall, Wescoat & Co. v. E. A. Crawford, sheriff, to which plaintiffs objected as irrelevant; and the testimony offered by the plaintiff included the judgment roll in Tabb & Jenkins Hardware Co. v. John Gelzer, to which defendants objected as irrelevant. Defendants also asked for leave to file a supplemental answer, to set up the matter of title adjudicated by the judgment, as per the judgment roll in Marshall v. Crawford aforesaid.” His Honor, in his decree, says: “As the judgment roll in Marshall, Wescoat & Co. v. Edward A. Crawford is a record between other parties thán the parties to this action, it is deemed irrelevant, and is ruled out, and, as a consequence, the defendants’ motion made at the hearing, without previous notice for leave to file a supplemental answer, to set up the alleged matter of title adjudicated in the aforesaid case of Marshall, Wescoat & Co. v. Crawford, must be denied.” The said judgment is not set out in the “Case,” and, therefore, cannot be considered by this Court in determining its relevancy. It is incumbent on the appellants to show error on the part of the presiding Judge, which they have failed to do.

2 The other question arising under paragraph 2 of the first exception is, whether there was error in refusing to allow the defendants leave to file their' supplemental answer. Section 198 of the Code provides that a defendant may be allowed, on motion, to make a supplemental answer. Before making such motion, the defendants were required to give four days’ notice thereof to the opposite party, which was not done in this case. Failure to give the proper notice of said motion was, of itself, sufficient ground for the refusal to grant the same by the Circuit Judge. Ex parte Apeler, 35 S. C., 421; Wagener v. Booker, 31 S. C., 377; Delany v. Eljord, 22 S. C., 304.

3 Paragraph 3 of the first section, embracing subdivisions a and b, is too general for consideration by this Court. Floyd v. Floyd, 46 S. C., 184; Sims v. Jones, 43 S. C., 99; Adler v. Cloud, 42 S. C., 281; Talbott & Son v. Padgett, 30 S. C., 167.

4 The other exceptions principally complain of error on the part of the Circuit Judge in his findings of fact. Instead of considering them seriatim, this Court thinks it best to make a connected statement of the facts established by the testimony as follows: John Gelzer, in August, 1892, bought the interest of Jenkins,'his partner, in the hardware business at Rock Hill, S. C. He did not have on hand money sufficient to complete the arrangement with Jenkins, and borrowed from J. J. Wescoat, of the firm of Marshall, Wescoat & Co., with which firm and its predecessor Gelzer had for years been employed as book-keeper. In order to secure the payment of this sum, John Gelzer, on the 17th day of August, 1892, executed a note in the sum of $700, payable forty days after date, also a mortgage on his stock of goods at Rock Hill, S.. C., to J. J. Wescoat, trustee. The evidence fails to satisfy us that more than the sum of $300 was advanced under said mortgage; and, as more than the amount advanced under said mortgage has been paid towards its extinguishment, the facts connected with it will be eliminated from the further consideration of the case, except in so far as they may throw light upon the other questions involved.

5. 67 On the 1st day of September, 1892, John Gelzer executed a mortgage on his stock of goods at Rock Hill, S. C., to John T. Ancrum, to secure a bond or obligation of even date with said mortgage, and payable one year after date. At the time this mortgage was executed Gelzer was insolvent, and a resident of Charleston County, but was then contemplating a change of residence to Rock Hill, S. C. On the 20th of September, 1892, he made an actual change of domicil to Rock Hill, S. C. Two things are necessary to effect a change of residence: 1st, there must be an intention to make such a'change; and 2d, the intention must be carried into effect by an actual change of domicil. John Gelzer, therefore, became a resident of Rock Hill, S. C., on the 20th of September, 1892, the said mortgage was recorded in York County, on the 31st of January, 1894. It is contended that this was not the proper county. Section 1968 of the Revised Statutes provides that: “All mortgages and instruments in writing in the nature of a mortgage, of any property real or personal, * * * shall be valid so as to effect, from the time of such delivery or execution, the rights of subsequent creditors or purchasers for valuable consideration without notice, only when recorded, within forty days from the time of such delivery or execution, in the office of register of mesne conveyance of the county where the property affected thereby is situated, in the case of real estate; and in the case of personal property, of the county where the owner of said property resides, if he resides within the State; or if he resides without the State, of the county where such personal property is situated at the time of the delivery or execution of said deeds or instruments: Provided, nevertheless, That the above mentioned deeds or instruments in writing, if recorded subsequent to the expiration of said period of forty days, shall be valid to affect the rights of subsequent creditors and purchasers for valuable consideration without notice, only from the date of such record.” The intention of this section is that a mortgage of personal property shall be recorded in the county within which the mortgagor resides. While John Gelzer was a resident of Charleston County, there is where the mortgage should have been .recorded; but when he became a resident of Rock Hill, then York County was where it should have been recorded. John Gelzer was a resident of Rock Hill at the time the mortgage was recorded in York County, and, therefore, it was recorded within the proper county, and was notice to the public from the time of such record. As the plaintiffs had notice of this mortgage before acquiring a lien on the property therein mentioned, they do not occupy the position of subsequent creditors for valuable consideration without notice. King v. Fraser, 23 S. C., 543. The mortgage executed to John R. Ancrum was for money actually advanced at the time or its execution. The delay in recording said mortgage was not caused by an intention to aid Gelzer in any respect to hinder, delay or defeat his creditors. In short, the testimony of Dr. John R. Ancrum explains to our satisfaction every circumstance urged against the validity of his mortgage. At the time the first mortgage to the Savings Bank of Rock Hill was executed (21st January, 1893), and at the time of the agreement to execute a mortgage to secure such further advances as the bank might make Gelzer (29th June, 1893), the said bank thought Gelzer was solvent.

The agreement to give the mortgage created a lien on the property to be mortgaged, and when the mortgage was executed in pursuance of such agreement, it had relation back to the time of the agreement. Dow v. Ker, Sp. Eq., 413; Jones on Liens, section 77; Pom. Eq. Jur., vol. III., section 1235. We are satisfied that it was not the intention of the Bank of Rock Hill to aid Gelzer in delaying, hindering or defeating his creditors in any manner. The Circuit Judge, in his decree, speaks of the officers of the bank as reliable and truthful gentlemen, and accepts what they say as the truth. The validity of said mortgages is to be determined by the facts and circumstances surrounding the execution of the first mortgage and the agreement to give the second mortgage, rather than by what took place thereafter. The assignment made by Gelzer for the benefit of his creditors is not assailed on account of any vice apparent upon the face of the deed of assignment, nor do the facts and circumstances brought out in evidence show its invalidity.

8 The appellants raised the question in argument, that the statute of 13th and 27th Elizabeth, as now revised, do not apply to transfers of personal property, because the words “goods and chattels” have been left out of the statutes. The views which we have hereinbefore expressed render a decision of such question immaterial in this case. The Court, however, takes this opportunity to settle a question of so great importance. The statutes of Elizabeth are but affirmations of the common law, and, therefore, the omission from said statutes of the words “goods and chattels” did not enable debtors to practice frauds as to “goods and chattels” any more than they could as to any other property. The conclusions of this Court on the foregoing questions of fact render a detailed discussion unnecessary as to other questions argued by counsel.

It is the judgment of this Court, that the judgment of the Circuit Court, in so far as it decides that the mortgage executed in favor of J. J. Wescoat, trustee, is no longer a .subsisting claim, be affirmed, but that it be reversed in all other respects, both as to the other mortgages and also as to the deed of assignment.