Powell v. Pearlstine

• Citation: 21 S.E. 328,43 S.C. 403
• Parties: POWELL v. PEARLSTINE et al. GARRIS v. SAME.
• Decision Date: 02 March 1895
• Court: United States State Supreme Court of South Carolina

21 S.E. 328

43 S.C. 403

POWELL v. PEARLSTINE et al.

GARRIS v. SAME.

Supreme Court of South Carolina

March 2, 1895

Appeal from common pleas circuit court of Colleton county; J. J Norton, Case Judge; D. A. Townsend, Order Judge.

Actions by Archibald C. Powell and others against I. M. Pearlstine & Sons to enjoin the sale of lands under a power contained in a mortgage thereof, and to have the mortgage declared void as having been fraudulently altered. From a judgment for plaintiffs, defendants appeal. Affirmed.

Mordecai & Gadsden and F. D. Edwards (Howell, Murphy & Farrow, of counsel), for appellants.

Fishburne & Gruber, for respondents.

McIVER C.J.

These two cases, depending upon the same facts, substantially, and governed by the same principles of law, were and will be considered together. It seems that on the 30th January, 1891 the said Powell executed a mortgage to one J. Berkman on a tract of land described in the complaint, containing 60 acres, which mortgage was duly recorded on the 7th of August 1891, when it purported to cover another tract of land, containing 35 acres, which, it is alleged, was fraudulently inserted in the mortgage after it was examined, either by the original mortgagee or by the defendants to whom it had been assigned. It further appears that subsequent to the execution of the mortgage the said Powell sold and conveyed to the said Garris, the plaintiff in the second case above stated, the 35 acre tract; and this is the only practical difference between the two cases. Subsequently to wit, on the 21st of July, 1893, the defendants, Pearlstine & Sons, as assignees of the mortgage, advertised both tracts of land for sale on the 17th of August, 1893, under an alleged power of sale contained in the mortgage. Thereupon these actions were commenced on the 9th of August, 1893, for the purpose of enjoining said sale, and having the said mortgages declared void, on account of the fraudulent alteration of said mortgage, and the same delivered up and canceled. By consent an order was passed on the 30th of October, 1893, directing the master of Collection county to take and report the testimony. Due notice was given to the defendants that, "on the call of these cases before the master," they would be required to produce the mortgage described in the pleadings; but when the mortgage was called for before the master the same was not produced, "nor was any excuse given for the failure to produce the same." Thereupon the plaintiffs introduced secondary evidence of its contents, together with testimony to establish the allegations of the complaint, which the circuit judge found, as matter of fact, was sufficient to establish the fraudulent alteration of the mortgage. The defendants offered testimony before the master, which was objected to upon the ground that the defendants, being in possession of the original mortgage, could not themselves introduce secondary evidence of its contents, which testimony was taken down and reported, subject to the objection. At a subsequent period the defendants examined several witnesses de bene esse, under the act of 1883 (sections 2345, 2347, Rev. St. 1893), before a notary public in the city of Charleston, and at the same time produced the mortgage, and submitted it, together with the testimony so taken. The circuit judge says in his decree: "Upon the trial of the cause before me, many objections were urged against the introduction of the testimony taken before the notary public in Charleston, as well as that introduced by the defendants before the master. But, under the view I take of the matter, it will be unnecessary to pass upon but one of them. The defendants, being in possession of the mortgage, and having failed to produce the same in response to the notice served upon them, could not themselves introduce secondary evidence of its contents; nor should they be allowed at a later period to introduce the mortgage on their own behalf." Accordingly, judgment was rendered granting the relief prayed for by the plaintiffs. From this judgment defendants appeal upon the several grounds set out in the record, which need not be repeated here, as counsel for appellants, in his argument here, has very properly stated that these several grounds really raise but two questions: "First, was there error in excluding entirely the mortgage from evidence? Second, even if the mortgage was altered as claimed, was there error in canceling the entire mortgage, instead of so much thereof as included the thirty-five acre tract?" The defendants also, in accordance with the practice, have given notice that they would insist that the judgment below should be sustained upon other grounds than those stated in the circuit decree, if this court should be unable to sustain said judgment upon the grounds there stated. But as we think that the conclusion reached by his honor, Judge Norton, is fully vindicated by what he has said, it will be unnecessary to state the additional grounds relied upon by respondents.

As to the first question, we think it is clear beyond dispute that the view taken by the circuit judge is fully supported, not only by the authorities which he has cited, but by reason also. In 16 Am. & Eng. Enc. Law, 860, we find the following language: "After a party has refused to produce a paper in his possession, and his adversary has proved its contents by secondary evidence, the party will not be permitted to contradict this secondary evidence by secondary evidence, or by putting the paper itself in evidence;" and this doctrine thus laid down in the text is supported by high authority cited in the notes. Again, in 21 Am. & Eng. Enc. Law, 990, the same doctrine is again laid down in the most explicit terms. The reason is obvious: the court will not permit a party to speculate upon the chances. If a party who, upon notice, refuses to produce a paper which is in his possession, and thereby forces his adversary to resort to secondary evidence of the contents of such paper, should be permitted afterwards to introduce the paper as a part of his own evidence, he would thus be afforded the opportunity of...