McCullars v. Harkness

HEAD, J. The plaintiff sued in trespass de bonis asportatis. The defendant, by plea, justified the taking under a mortgage executed by the plaintiff. The plaintiff replied, among other things, payment of the mortgage debt, before the taking. The plaintiff’s evidence tended to show that the defendant agreed with him that [256] he could pay the mortgage indebtedness by work and labor for the defendant, and that the first work done by plaintiff for defendant should be applied to the payment of such indebtedness until the entire amount thereof was paid ; and that he accordingly performed labor for the defendant more than sufficient to pay the entire mortgage indebtedness, before the commission of the alleged trespass. If this evidence be true the mortgage was satisfied and discharged, and the title of the plaintiff was reinvested in him. It is contended by the defendant that although such may have been the agreement, and that the labor was so performed, yet the mortgage was not discharged without au affirmative application by the defendant of the value of the labor to the payment of the indebtedness. We think such is not the law of this State. Even prior to the present statute, by which payment of a mortgage debt, although after the law-day, operates to reinvest the title to the property in the mortgagor, it was held in this court, that payment of a chattel mortgage had that effect. A distinction was made between chattel and real estate mortgages, in. this respect. As to the latter, payment, after law-day, did not .divest the title of the mortgagee. A conveyance to the mortgagor was necessary to accomplish that result. If the plaintiff, in pursuance of such an agreement as'he sets up, performed the labor as stipulated, the law applied the value of such labor to the payment of the indebtedness, as the same was performed, and no actual application thereof by the defendant to the payment of the indebtedness was necessary to discharge the mortgage. The defendant was compelled to make the application, and it will be considered as having been made. The third charge given ■ at the request of the plaintiff was proper. There was evidence tending to show that the defendant sold some cotton for the plaintiff, amounting to $17.71, and that defendant had never accounted to the plaintiff for the money. There was no evidence of any agreement that this money should be applied to the mortgage debt, or that it was so applied! It stood, therefore, as an independent indebtedness, due from the defendant to the plaintiff, and could, in no aspect of this case, be considered for any purpose. It does not appear that the money was received as a payment on any [257] indebtedness owing by the plaintiff to the defendant. As to this money there was no question of the application of payments, which could arise. The fourth charge, in view of this principle, ought to have been refused. The suit of McCullars v. Harkness pending in the circuit court, on appeal from a justice of the peace, nor the proceedings had therein on the trial before the justice, exert any influence whatever upon the merits of this action. If the plaintiff's evidence as to the agreement for performance of labor to go in payment of the mortgage debt, and that such labor, sufficient to pay the debt, was performed under the agreement, be true, then the mortgage was satisfied and discharged, and no subsequent effort of the plaintiff to use the same demand as a set off, in another action in another court, could operate to review the mortgage and reinvest the defendant with the 'title to the goods. If the defendant’s evidence be true, that there was never such an agreement, and that no labor was performed to go in payment of the mortgage debt, then the claim of the plaintiff for the value of the labor (unless it was agreed that it should be applied to the payment of advances, not including the mortgage debt, as defendant’s evidence tends to show) was an independent indebtedness owing to him by the defendant; and in that case, or if defendant’s evidence as to its application to advances be true, there would be no satisfaction or discharge of the mortgage. It does not appear from the evidence of either party that the performance of this labor was to be a general payment upon indebtedness owing by the plaintiff to the defendant, without special application to any particular debt, hence no question of the application of the value of the labor to the payment of one or the other of distinct demands held by the defendant against the plaintiff, under the rules of law governing appropriation of payments arises. Under these principles, the first charge requested by the plaintiff would have been properly given if it had omitted the words “or might” near the conclusion of the charge. The insertion of those words was not justified by any evidence, and if it had been, the charge would have been bad, by reason of their insertion . The second charge requested by the plaintiff was properly given. [258] The fourth charge requested by the defendant ought to have been given, and its refusal was error. The oral charge to which exceptions were reserved will probably not be repeated in the same form on another trial. We are not prepared to say that some of the issues raised by the pleadings were not ignored in these instructions. Care should be taken to confine instructions to issues raised by the pleadings. Reversed and remanded.