The opinion of the court was delivered by: Stukes, Chief Justice.
This is an action in claim and delivery for the possession or value of a Hudson automobile. It was sold by plaintiffs at their place of business in Spartanburg to one W.F. Durham on August 3, 1955. Durham gave as his address 10 Vance St., Greenville, and the purchase contract recited that the car would be kept there. According to the testimony of the salesman, he had known Durham for several years and had last (about two years previously) known him as a resident of Spartanburg, where he had a son, with or near whom he lived; and Durham told him on August 3 that he was living and working in Spartanburg, but about to leave for Alabama and for that reason did not need a South Carolina license for his new automobile. Plaintiffs took from Durham a chattel mortgage for the credit portion of the sales price, upon which the action was brought. It was recorded in Spartanburg County on August 5, 1955, and subsequently in Greenville County, at 11:00 o'clock a. m., on August 18. Sec. 60-101, Code of 1952.
Evidence in behalf of the defendant was to the effect that Durham traded the automobile, for value, on August 13 to Sullivan Motor Company at Anderson and by that time had obtained a highway department license for the Hudson and had given his address as 10 Vance St., Greenville, which he also gave the Sullivan Company as his address. The Sullivan Company inquired of Durham whether there was any mortgage on the car and he replied in the negative. However, the records of Greenville County were searched and there was no mortgage of record. On August 16 the Sullivan Company sold the automobile to Leon-Saunders-Paige Motor Co. of Anderson which, on the same day, sold the car for value to defendant. As to the date of the last transaction there was some dispute in the evidence. That of the defendant showed that on the 16th he delivered to Leon-Saunders-Paige an old automobile as a trade-in and then took possession of the Hudson. The bill of sale showed that date. His mortgage for the credit portion of the price also bore that date, but plaintiffs contended that the transaction was not completed until the afternoon of August 18th, relying upon the probate on defendant's chattel mortgage, which was dated August 18, and the receipt book of Leon-Saunders-Paige which indicated payment of the "cash down payment" of $67.75 on August 18.
Plaintiffs instituted criminal proceedings against Durham for disposing of property under lien and the warrant was served in Greenville County but he was placed in jail in Spartanburg County, later released on bond, and at the time of the trial of this action the criminal case had not come to trial.
At the conclusion of the court's formal instructions to the jury and when they were excused from the court room pursuant to Section 10-1210 of the Cumulative Supplement to the Code, defendant's counsel made the following oral request for additional instructions: "It is our understanding of the law that the equities of one purchaser are passed on to a subsequent purchaser, who is also an innocent purchaser for value. We'd like that request because you have two transactions between this purchaser and the original transaction." The court declined to so instruct the jury. They returned verdict for the plaintiffs for possession of the automobile or its value.
Defendant moved for new trial which was granted by the court upon the ground that the above quoted requested instruction should have been given. Plaintiffs have appealed and defendant has submitted additional grounds to sustain the order for new trial, which latter impute other errors of omission and commission in the instructions. It is not necessary to consider the additional grounds because we conclude that new trial was properly granted upon the ground stated in the order.
Appellants contend that the defense encompassed in the questioned instruction was not pleaded in the answer, which is quoted in material part, as follows:
"3. That he (defendant) purchased said automobile for valuable consideration from Leon-Saunders Motor Company, Anderson, South Carolina, on the 16th day of August, 1955, and alleges that there was nothing on record in Greenville County, the home of W.F. Durham, who is alleged to have given plaintiff mortgage over the said car.
"4. That defendant had no notice of any kind of any claim of the plaintiff and alleges, on information and belief, that subsequent to the date he purchased the said car, the plaintiff did have recorded in the County of Greenville the alleged mortgage.
"5. That this defendant purchased the said car for full consideration without any notice, actual or constructive, that the plaintiff had any claim in the same, and plaintiff, having failed to file any claim it had in the home county of the party who gave the mortgage is now estopped to make any claim against this defendant on account of the said car"
Like disposition to the foregoing was made of a similar situation in Wigg v. Orphan Aid Society, 145 S.C. 393, 143 S.E. 9, 12, and it was said: "If the plaintiff had raised objection during the progress of the trial and moved to strike out the testimony, the defendant would have been put on notice, and if advised, moved the court for the answer to be amended to conform to the facts proven — a matter addressed to the discretion of the court. Under the circumstances we do not think the plaintiffs [are] in a position to raise the question as to the insufficiency of the pleadings at this time." The principle was applied conversely in Taylor v. Winnsboro Mills, 146 S.C. 28, 143 S.E. 474 (and earlier cases cited) which was a negligence case where recovery was allowed upon unobjected-to evidence of an act of negligence which was not specified in the complaint.
There can be no doubt of the soundness of the proposition of law which respondent's counsel asked the court to charge. Applying it to the facts of the case, if Sullivan Motor Company acquired the automobile on August 13 from Durham, for value, without actual notice of his mortgage to appellants, and if it was not at that time of record in the county of Durham's residence, as that term is used in the recording statute, the Sullivan Motor Company became the owner of the automobile free of the lien of the mortgage; and subsequent purchasers succeeded to its rights. Under the evidence the Leon-Saunders-Paige Company also may have been a bona fide purchaser for value without notice, whose title as such passed to respondent upon his purchase, although they need not have been if the Sullivan Company was. The governing law has been established by many decisions; among them are: Fretwell v. Neal, 11 Rich. Eq. 559, 572, "the well-recognized doctrine of equity being that wherever, in a succession of purchasers you reach one who is innocent and purchases in ignorance, the title is thenceforth sanctified"; Foster v. Bailey, 82 S.C. 378, 382, 64 ...