Adger & Co. v. Pringle

• Decision Date: 18 April 1879
• Docket Number: CASE No. 718.
• Citation: 11 S.C. 527
• Court: South Carolina Supreme Court
• Parties: ADGER & CO. v. JOHN JULIUS PRINGLE ET AL.

11 S.C. 527

ADGER & CO.

v.JOHN JULIUS PRINGLE ET AL.

CASE No. 718.

Supreme Court of South Carolina.

Apr. 18th, 1879.

1. Making creditors of an ancestor parties defendant to an action brought by mortgagees of the heirs-at-law to subject the descended and subsequently-mortgaged real estate to sale, and to procure distribution of the proceeds, is a question of pleading and practice, and not of jurisdiction, and consent of parties is a waiver of objection.

2. The creditors of the ancestor are proper parties to such action.

3. After issue joined and testimony taken, the mere announcement by plaintiffs at a reference that they withdraw their claim as against some of the defendants will not operate as a dismissal of the complaint against such defendants.

4. Whether a debt of the ancestor is discharged by the bond of the heirs is a question of fact depending upon intention. It is not payment, unless so accepted by the creditor, and the burden of proof is upon the party affirming it.

5. The concurrent finding of a question of fact by referee and Circuit judge is conclusive upon this court, unless such finding is without testimony to sustain it, or is manifestly against the weight of evidence.

6. When bond and mortgage are taken to secure the payment of book account for present and future advancements, and a promissory note for a part of the account is afterwards taken, but not entered upon the books of mortgagee, and is then endorsed before maturity for valuable consideration to one ignorant at the time of the existence of the bond and mortgage, which are afterwards assigned to secure a debt to a creditor, who examines the books and knows nothing of the note-upon sale of the mortgaged premises the proceeds should be applied pro rata to the note, and to the balance of indebtedness of mortgagors to mortgagee. Semble, and per WALLACE, Circuit judge.

7. Mortgage by heirs-at-law of lands descended, before action brought by creditors of the ancestor, will be postponed to debts of such creditors.

Before WALLACE, J., at Charleston, March, 1878.

This was an action brought by Adger & Co. against the widow and children of J. J. I. Pringle, certain persons claiming to be bond creditors of the deceased, and certain creditors of the widow and children. The facts are clearly set forth in the report of G. D. Bryan, Esq., special referee. His report is as follows:

By an order of the said court, of date the day of , A. D. 1875, the above cause was referred to me to hear and determine the issues of fact and the issues of law raised therein, and report the findings thereon to the said court separately.

I find the following facts:

On the 11th of March, 1864, John Julius Izard Pringle departed this life, leaving as his heirs-at-law his widow, Mrs. Jane Pringle, his three sons, John Julius Pringle, Joel R. Poinsett Pringle and D. Lynch Pringle, and his daughter, Mary Izard Pringle (now Madame Mary Izard Des Frances); and seized of the following real estate, to wit: White House plantation, situated on the Pee Dee river, containing about two hundred and forty acres of swamp or rice land, and fifty acres of charred pine or rice land; and Greenfield plantation, situated on Black river, containing about one hundred acres of swamp or rice land, and one thousand nine hundred acres of pine or high land; and also of considerable personalty, consisting chiefly of negro slaves, which latter property was all lost by the results of the late war. By the last will of the said John J. I. Pringle, Mrs. Jane Pringle, his wife, was named as executrix, but no disposition was made of his property. Joel R. Poinsett Pringle was killed during the late war; he was unmarried and died intestate.

At the time of the death of the said John Julius Izard Pringle,there was due from time to time to Alexander Robertson and John F. Blacklock, a bond in the penal sum of $7000, conditioned for the payment of the sum of $3500, and of date the 22d of January, 1856. This bond was, on the said 22d of January, 1856, assigned by the said Alexander Robertson and John F. Blacklock to Mrs. Mary C. Allston, and under her will was assigned by her executors, on the 23d of January, 1860, to Mrs. Anna J. Gadsden, one of the defendants herein. There was also due from the said John Julius Izard Pringle to Alexander Robertson and John F. Blacklock, as executors of Mrs. Mary C. Allston, a bond in the penal sum of $12,000, conditioned for the payment of the sum of $6000. Both of the bonds were destroyed or lost during the late war.

On the 10th of October, 1866, the defendants, Mrs. Jane Pringle, John Julius Pringle, D. Lynch Pringle, and Madame Mary Izard Des Frances (then Mary Izard Pringle,) being then the surviving heirs of the said John Julius Izard Pringle, made and delivered to the defendant, Mrs. Anna J. Gadsden, their joint and several bond, in the penal sum of $7000, conditioned to pay the full and just sum of $3500, in three equal annual installments, with interest from the 22d of January, 1865, which bond was given in substitution for and renewal of the bond of the said J. Julius Izard Pringle, lost or destroyed, as aforesaid. The interest on this bond has been paid up to the 22d of January, 1874.

On the 17th of February, 1867, the defendants, Mrs. Jane Pringle, John Julius Pringle, and D. Lynch Pringle, and Madame Mary Izard Des Frances (then Mary Izard Pringle,) the surviving heirs of John Julius Izard Pringle, made and delivered to Alexander Robertson and John F. Blacklock, executors of Mary C. Allston, their joint and several bond, in the penal sum of $12,000, conditioned for the payment of the full and just sum of $6000, in four equal successive annual installments, with interest payable annually-which bond was given in substitution for and renewal of the bond of the said John Julius Izard Pringle, lost or destroyed as aforesaid. This bond was thereafter assigned by the said Alexander Robertson and John F. Flacklock, executors, to the defendants, Mary A. Lide and B. A. Lide.

After the death of the said John Julius Izard Pringle, his wife and children took possession of the plantations “Whitehouse” and “Greenfield,” and planted them for the benefit of the estate, but, owing to large losses, no profits were derived therefrom. The money for this purpose was obtained from James R. Pringle, James R. Pringle & Son, and James R. Pringle & Co.

On the 31st of March, 1870, the defendants, Mrs. Jane Pringle, John Julius Pringle, D. Lynch Pringle, made and delivered to James R. Pringle, and James R. Pringle, the younger, under the firm name of James R. Pringle & Son, their joint and several bond, in the penal sum of $50,000, conditioned to pay the said James R. Pringle & Son the said sum of $50,000, or so much thereof as would repay, indemnify and hold harmless the said James R. Pringle & Son for and from any loss, for any then present, or any future loans or advances made by them to the said obligors, on their individual accounts, or on account of any then present or future loans or advances, and such interest thereon as might be agreed upon, as at that time had been or might thereafter be made, from time to time, by the said obligees, for or on account of Whitehouse plantation, Keithfield mills and Keithfield plantation, and Greenfield plantation, and the expenses, management, and cultivation of said plantations and mills, the amount of the indebtedness of the said obligors to the said obligees, whether on their individual account or on account of the said plantations and mill, to be ascertained at any time by reference to the books of account of the said obligees, James R. Pringle & Son. To secure the performance of the conditions and covenants in the said bond contained, the said obligors on the same day, to wit, the 31st of March, 1870, executed and delivered to the said James R. Pringle & Son a mortgage of all their right, title, interest and estate in and to the said Whitehouse and Greenfield plantations and Keithfield plantation and mills, which mortgage was duly recorded in the proper office.

On the same day, to wit, the 31st of March, 1870, the defendant, Madame Mary Izard Des Frances (then Mary I. Pringle,) made and delivered to the said James R. Pringle & Son, her bond in the sum of $5000, and thereby covenanting to save harmless the said James R. Pringle & Son from any loss which they might sustain for or on account of any then present or any future loans or advances, which they had or might make to her individually, or on account of her proportion, being two-ninths of any advances which had or might be made on account of the plantations known as Whitehouse and Greenfield-the said indebtedness to be ascertained by reference to the books of account of the said James R. Pringle & Son. To secure this bond she executed and delivered to the said James R. Pringle & Son a mortgage of all her right, title and interest and estate in and to the said two plantations, Whitehouse and Greenfield, which said mortgage was duly recorded. At the time of the execution and delivery of these two bonds and mortgages, the obligees, James R. Pringle & Son, knew that the bonds held by the defendants, Mrs. Anna J. Gadsden, Mrs. Mary A. Lide and B. A. Lide, as aforesaid, were unpaid, and were debts due by the estate of John Julius Izard Pringle. These two bonds and mortgages were, on the 11th day of August, 1871, assigned to the plaintiffs, James Adger & Co., by James R. Pringle & Son, and were taken by the said plaintiffs at a valuation of $30,000, which was about the amount of the indebtedness of the obligors to James R. Pringle & Son, as appeared from their books of account, and which was ascertained at that time by the plaintiffs, James Adger & Co. The consideration of the assignment was loans and endorsements made by the plaintiffs to and for James R. Pringle & Son. The bonds and mortgages have ever since been held by the plaintiffs.

The said James R. Pringle and James R....