September 3, 1917. The opinion of the Court was delivered by
MR. JUSTICE HYDRICK.
Defendant appealed from judgment for plaintiff for negligent injury to plaintiff's automobile.
The exceptions present two assignments of error:
1. That the Court erred in refusing to direct the verdict for defendant, on the ground that plaintiff had no title to the automobile, because he had given a mortgage on it which was past due and unpaid. That defense was properly overruled on the authority of Wilkes v. Railway, 85 S.C. 346, 67 S.E. 292, 137 Am. St. Rep. 890, 21 Ann. Cas. 79. See, also, the editorial note to that case, and 11 C.J. 598. Defendant knew of the mortgage, and, under the case cited, could have protected itself against another action by the mortgagee by having him made a party to this action.
2. That the Court charged on the facts in referring to the automobile as plaintiff's property. The right of plaintiff was not a question of fact. As matter of law, under the case cited, he had such property right in the automobile as entitled him to maintain the action.
Judgment affirmed.