Nesbitt Auto Co. v. Kirby

Supreme Court of South Carolina

Nesbitt Auto Co. v. Kirby

103 S.E. 532, 114 S.C. 200, 1920 S.C. LEXIS 124

CourtSupreme Court of South Carolina

DecidedJune 28, 1920

Docket10436

StatusPublished

Cited by1 cases

This text of 103 S.E. 532 (Nesbitt Auto Co. v. Kirby) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nesbitt Auto Co. v. Kirby, 103 S.E. 532, 114 S.C. 200, 1920 S.C. LEXIS 124 (S.C. 1920).

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Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

The plaintiff sold to the defendant an automobile truck part cash and part credit. The credit portion was secured by notes of the defendant and a chattel mortgage of the truck. The defendant paid two of the notes, and then made default in the payments of the other notes. The plaintiff brought an action in claim and delivery, claiming the possession under his mortgage. The defendant surrendered the possession of the truck, which the plaintiff sold to foreclose his mortgage. The truck was bought in by the plaintiff for $75, and resold by the plaintiff for $663. The plaintiff gave the defendant credit for the resale price, and brought this action for $172.28, the balance due on the notes. To this action for the balance the defendant set up fraud in the original sale. The plaintiff set up the former action, and claimed that the defendant is estopped by the former action from now calling m question the validity of the mortgage. The presiding Judge sustained the plaintiff’s claim, and held that the defendant was bound to set up *202 this defense in the former action, and is now estopped. The te;'m “res adjttdicata” was not used, but that is the meaning of it.

1, 2 An action in claim and delivery is ordinarily a .simple action for possession, but when the right of plaintiff is based upon a mortgage, then the validity of the mortgage is necessarily involved. If the mortgage is fraudulent, it is void, and no title can be derived from it. A judgment for the plaintiff for the possession necessarily includes a judgment that the mortgage is valid. The record in this case (we are bound by the record) does not show that the action for claim and delivery proceeded to judgment. The record only shows that an action was brought, and the defendant surrendered the possession and made default. The record does not show that there was a- judgment, and, of course, if there was no judgment there can be no res adjudicata. If the plaintiff had taken a judgment, his plea would have been sustained. The plaintiff not having made it appear that there was a judgment, his plea cannot be sustained. This is the only question that it is proper to consider in this appeal.

The judgment is reversed, and the case is remanded for a new trial.

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The opinion of the Court was delivered by

Mr. Justice Fraser.

The plaintiff sold to the defendant an automobile truck part cash and part credit. The credit portion was secured by notes of the defendant and a chattel mortgage of the truck. The defendant paid two of the notes, and then made default in the payments of the other notes. The plaintiff brought an action in claim and delivery, claiming the possession under his mortgage. The defendant surrendered the possession of the truck, which the plaintiff sold to foreclose his mortgage. The truck was bought in by the plaintiff for $75, and resold by the plaintiff for $663. The plaintiff gave the defendant credit for the resale price, and brought this action for $172.28, the balance due on the notes. To this action for the balance the defendant set up fraud in the original sale. The plaintiff set up the former action, and claimed that the defendant is estopped by the former action from now calling m question the validity of the mortgage. The presiding Judge sustained the plaintiff’s claim, and held that the defendant was bound to set up *202 this defense in the former action, and is now estopped. The te;'m “res adjttdicata” was not used, but that is the meaning of it.

1, 2 An action in claim and delivery is ordinarily a .simple action for possession, but when the right of plaintiff is based upon a mortgage, then the validity of the mortgage is necessarily involved. If the mortgage is fraudulent, it is void, and no title can be derived from it. A judgment for the plaintiff for the possession necessarily includes a judgment that the mortgage is valid. The record in this case (we are bound by the record) does not show that the action for claim and delivery proceeded to judgment. The record only shows that an action was brought, and the defendant surrendered the possession and made default. The record does not show that there was a- judgment, and, of course, if there was no judgment there can be no res adjudicata. If the plaintiff had taken a judgment, his plea would have been sustained. The plaintiff not having made it appear that there was a judgment, his plea cannot be sustained. This is the only question that it is proper to consider in this appeal.

The judgment is reversed, and the case is remanded for a new trial.

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Bluebook (online)

103 S.E. 532, 114 S.C. 200, 1920 S.C. LEXIS 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nesbitt-auto-co-v-kirby-sc-1920.

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