The opinion of the Court was delivered by
Mr. Chief Justice Gary.
This is an appeal from an order refusing a reference. The complaint alleges:
“(2) That the defendant now has in its possession 13,841 pounds of lint cotton belonging to the plaintiff. The plaintiff is informed and believes that the defendant has a claim or mortgage on one-half of this cotton, that is to say, 6,920^2 pounds, and the plaintiff is also informed and believes that the defendant has a claim or a mortgage on the remaining one-half, to the extent of plaintiff’s account with P. E. Hamer, which amounts to $409.66, which would
amount to 4,819J4 pounds. The balance of the said cotton is 2,101 pounds, and, though plaintiff has demanded the same, the defendant knowingly and wilfully retains possession, to the great damage and injury of the plaintiff.
“(3) The defendant now has in its possession property of the plaintiff in the amount of 2,101 pounds of cotton, and, though plaintiff has demanded the same, the defendant knowingly and wilfully retains possession thereof.”
After denying the allegations of the complaint, the defendant interposed the following as a defense:
“On information and belief, this defendant alleges that the plaintiff was a share cropper of P. E. Hamer’s, and that such crops as plaintiff produced during the year 1914, if any, were the property of P. E. Hamer; and that same were duly mortgaged to this defendant, without any notice, either actual or constructive, of any claim of the plaintiff’s whatsoever; and that whatever cotton this defendant may have received, which was produced by the plaintiff, was received voluntarily on the part of both plaintiff and P. E. Hamer; and that said P. E. Hamer is largely indebted to this defendant on a debt which the said mortgage on said crops was given to secure; and this defendant is informed and believes that the plaintiff owes the said P. E. Hamervery much more than any part of the crop coming to him was worth when so delivered. * * *”
The appellant’s-exceptions are as follows:
(1) “The Court erred, it is respectfully submitted, in holding that, under the pleadings, this was not a case of equity for an accounting, but was a case for damages for a jury.”
(2) “The Court erred, it is respectfully submitted, in not holding that this was simply an action in equity for an accounting between a share cropper and his employer, and that the defendant bank stood in the shoes of the employer^ and that it was a matter of equity and should be referred.”
1
On' the call of the case a preliminary motion was made to dismiss the appeal on the ground that the order is not appealable, and, therefore, that the Court is without jurisdiction, at this time, to hear the case.
It is only necessary to state that an order which deprives a party of a mode of trial to which he is entitled by law is appealable.
2, 3
We proceed to determine whether the effect of said order was to deprive the appellant of such right.
Section 331 of the Code is as follows:
“Where the parties do not consent, the Court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: (1) Where the trial of an issue of fact shall require the examination of a long account on either side; in which cáse, the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or (2) where the taking of an account shall’ be necessary for the information of the Court before judgment. * * *”
That section must be considered in connection with section 312 of the Code, which provides that an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived.
It cannot be contended for a moment that this is an action for the recovery of specific real or personal property; and we shall proceed to show that it is not an action for the recovery of money only.
The complaint shows that the defendant is a mortgagee, and that he is in possession of the property covered by his mortgages. It does not allege, except inferentially, the amount due on one of the mortgages, but does allege that the indebtedness secured by the other mortgage amounts to $409.66, leaving a “balance” of 2,101 pounds after satis
faction of the mortgages. It does not allege any facts tending to show that the plaintiff’s right to the possession of the cotton is paramount to the right of the mortgagee.
The cases of
Reese v. Lyon,
20 S. C. 17, sustain the following propositions:
4
(1) That, upon breach of the condition in a mortgage of personal property, the legal title to the property becomes vested in the mortgagee.
5
(2) That, where the mortgagee is in possession of the property, the mortgagor cannot maintain an action, either for claim and delivery or for damages arising out of the detention of the property, for the reason that such possession is not wrongful.
(3) That, after condition ‘ broken, and before a sale of the property, the only right of the mortgagor is to bring an action to redeem, which is equitable in its nature.
6
(4) That the Court, in the exercise of its chancery powers, will not, however, allow the mortgagor to redeem, unless he pays, not only the indebtedness secured by the mortgage, but, likewise, any other debts he may owe the mortgagee.
We need not discuss the proper remedy of the mortgagor after the sale of the property, as it appears that the mortgagee has not sold the cotton.
7
Although a complaint may contain allegations appropriate to an action for the recovery of a judgment for money, nevertheless, if the plaintiff also seeks to subject specific .property to the satisfaction of his claim, the action is equitable in its nature, and the plaintiff is not entitled to a trial by jury.
Ex parte Landrum,
69 S. C. 136, 48 S. E. 47.
In that case the Court uses this language:
“In an action at common law, the only judgments that could be rendered were: (1) For the recovery of specific
real property; (2) for the recovery of specific personal property; (3) for money.
“In the case under consideration, the respondents not only seek to recover judgment for the amount of their fees, but likewise to have determined out of what fund they are to be paid. This renders it necessary to invoke the aid of the Court in the exercise of its chancery powers. The'facts are, therefore, reviewable by this Court.”
The said case and others of a kindred nature are cited in
Mobley v.
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The opinion of the Court was delivered by
Mr. Chief Justice Gary.
This is an appeal from an order refusing a reference. The complaint alleges:
“(2) That the defendant now has in its possession 13,841 pounds of lint cotton belonging to the plaintiff. The plaintiff is informed and believes that the defendant has a claim or mortgage on one-half of this cotton, that is to say, 6,920^2 pounds, and the plaintiff is also informed and believes that the defendant has a claim or a mortgage on the remaining one-half, to the extent of plaintiff’s account with P. E. Hamer, which amounts to $409.66, which would
amount to 4,819J4 pounds. The balance of the said cotton is 2,101 pounds, and, though plaintiff has demanded the same, the defendant knowingly and wilfully retains possession, to the great damage and injury of the plaintiff.
“(3) The defendant now has in its possession property of the plaintiff in the amount of 2,101 pounds of cotton, and, though plaintiff has demanded the same, the defendant knowingly and wilfully retains possession thereof.”
After denying the allegations of the complaint, the defendant interposed the following as a defense:
“On information and belief, this defendant alleges that the plaintiff was a share cropper of P. E. Hamer’s, and that such crops as plaintiff produced during the year 1914, if any, were the property of P. E. Hamer; and that same were duly mortgaged to this defendant, without any notice, either actual or constructive, of any claim of the plaintiff’s whatsoever; and that whatever cotton this defendant may have received, which was produced by the plaintiff, was received voluntarily on the part of both plaintiff and P. E. Hamer; and that said P. E. Hamer is largely indebted to this defendant on a debt which the said mortgage on said crops was given to secure; and this defendant is informed and believes that the plaintiff owes the said P. E. Hamervery much more than any part of the crop coming to him was worth when so delivered. * * *”
The appellant’s-exceptions are as follows:
(1) “The Court erred, it is respectfully submitted, in holding that, under the pleadings, this was not a case of equity for an accounting, but was a case for damages for a jury.”
(2) “The Court erred, it is respectfully submitted, in not holding that this was simply an action in equity for an accounting between a share cropper and his employer, and that the defendant bank stood in the shoes of the employer^ and that it was a matter of equity and should be referred.”
1
On' the call of the case a preliminary motion was made to dismiss the appeal on the ground that the order is not appealable, and, therefore, that the Court is without jurisdiction, at this time, to hear the case.
It is only necessary to state that an order which deprives a party of a mode of trial to which he is entitled by law is appealable.
2, 3
We proceed to determine whether the effect of said order was to deprive the appellant of such right.
Section 331 of the Code is as follows:
“Where the parties do not consent, the Court may, upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: (1) Where the trial of an issue of fact shall require the examination of a long account on either side; in which cáse, the referee may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or (2) where the taking of an account shall’ be necessary for the information of the Court before judgment. * * *”
That section must be considered in connection with section 312 of the Code, which provides that an issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived.
It cannot be contended for a moment that this is an action for the recovery of specific real or personal property; and we shall proceed to show that it is not an action for the recovery of money only.
The complaint shows that the defendant is a mortgagee, and that he is in possession of the property covered by his mortgages. It does not allege, except inferentially, the amount due on one of the mortgages, but does allege that the indebtedness secured by the other mortgage amounts to $409.66, leaving a “balance” of 2,101 pounds after satis
faction of the mortgages. It does not allege any facts tending to show that the plaintiff’s right to the possession of the cotton is paramount to the right of the mortgagee.
The cases of
Reese v. Lyon,
20 S. C. 17, sustain the following propositions:
4
(1) That, upon breach of the condition in a mortgage of personal property, the legal title to the property becomes vested in the mortgagee.
5
(2) That, where the mortgagee is in possession of the property, the mortgagor cannot maintain an action, either for claim and delivery or for damages arising out of the detention of the property, for the reason that such possession is not wrongful.
(3) That, after condition ‘ broken, and before a sale of the property, the only right of the mortgagor is to bring an action to redeem, which is equitable in its nature.
6
(4) That the Court, in the exercise of its chancery powers, will not, however, allow the mortgagor to redeem, unless he pays, not only the indebtedness secured by the mortgage, but, likewise, any other debts he may owe the mortgagee.
We need not discuss the proper remedy of the mortgagor after the sale of the property, as it appears that the mortgagee has not sold the cotton.
7
Although a complaint may contain allegations appropriate to an action for the recovery of a judgment for money, nevertheless, if the plaintiff also seeks to subject specific .property to the satisfaction of his claim, the action is equitable in its nature, and the plaintiff is not entitled to a trial by jury.
Ex parte Landrum,
69 S. C. 136, 48 S. E. 47.
In that case the Court uses this language:
“In an action at common law, the only judgments that could be rendered were: (1) For the recovery of specific
real property; (2) for the recovery of specific personal property; (3) for money.
“In the case under consideration, the respondents not only seek to recover judgment for the amount of their fees, but likewise to have determined out of what fund they are to be paid. This renders it necessary to invoke the aid of the Court in the exercise of its chancery powers. The'facts are, therefore, reviewable by this Court.”
The said case and others of a kindred nature are cited in
Mobley v. McLucas, 99
S. C. 99, 82 S. E. 986.
8
A motion for a reference is ordinarily addressed to the discretion of the presiding Judge, but, if it should appear, as it does in the present case, that his discretion was erroneously exercised, then the order granting or refusing a reference, will be set aside.
9
Not only was there error in refusing a reference as to the issues arising out of the complaint, but, as it clearly appears that the issues raised by the defense cannot be determined without the aid of the Court in the exercise of its equitable jurisdiction, there was error, also, in refusing a reference as to those issues.
Trump v. Mikel,
105 S. C. 280, 89 S. E. 645;
Devereux v. McCrady,
46 S. C. 133, 24 S. E. 77;
Mercantile Co. v. Britt,
102 S. C. 499, 87 S. E. 143.
Reversed.
Two other cases were heard in connection with this case. The facts are similar and the same questions are involved. The orders in those cases are also reversed.
Messrs. Justices Hydrick and Fraser concur in the opinion of the Court.