Allen v. Petty

• Citation: 36 S.E. 586,58 S.C. 240
• Parties: ALLEN v. PETTY et al.
• Decision Date: 16 July 1900
• Court: United States State Supreme Court of South Carolina

36 S.E. 586

58 S.C. 240

ALLEN v. PETTY et al.

Supreme Court of South Carolina

July 16, 1900

Appeal from common pleas circuit court of Cherokee county; O. W Buchanan, Judge.

Action by Mrs. A. G. Allen against Harriet v. Petty and others on a note. Judgment for plaintiff, and defendants appeal. Affirmed.

J. C Jefferies, for appellants.

Simpson & Bomar, for respondent.

GARY A. J.

That part of the special master's report which states the facts of the case is as follows: "This is an action brought by Mrs. A. G. Allen against the administrator of the estate of C. C. Petty, deceased, as well as against his heirs at law, to foreclose a mortgage given her by the said intestate. The note given by C. C. Petty to Mrs. Allen is as follows: '$600.00. Twelve months after date I promise to pay to Mrs. A. G. Allen or order the sum of six hundred dollars, for value received, with interest from date until paid at the rate of eight per cent. per annum interest to be paid annually, or to be added to principal annually and bear interest at same rate as principal till paid. [Signed] C. C. Petty. Dec. 31st, 1891.' A mortgage was also executed and delivered to Mrs. Allen, or to her agent, covering some land in Cherokee county, to secure the payment of the said note. The following paper was also given to the agent of Mrs. Allen at this time: 'Whereas, C. C Petty has this day borrowed from Mrs. Annie G. Allen the sum of six hundred dollars, and agreed to pay her interest at the rate of ten per cent. per annum: Now, therefore, I personally guaranty that the said interest shall be paid annually, without any plea of usury, by the said C. C. Petty. [Signed] W. S. Thomason. Dec. 31st, 1891.' All these papers were in the handwriting of W. S. Thomason, who seemed to have represented both parties in these dealings with each other, and in collecting interest for Mrs. Allen for several years. The paper last above copied, signed by W. S. Thomason, was kept with the note herein sued on, and seems to have been considered practically a part of the same; and, in pursuance of the agreement evidenced by said paper, C. C. Petty paid interest on the note, not as stipulated therein, but at the rate of ten per cent., namely, sixty dollars a year, as shown by the credits on the note in handwriting of Judge Thomason, the receipts, also in his handwriting, and the testimony of Mrs. Allen, and her declarations to C. A. Petty. In addition to these payments of interest, defendant claims that C. C. Petty paid to W. S. Thomason, former attorney of Mrs. Allen, the sum of one hundred dollars, which he claims should be credited on the note. No receipt was produced on the trial for this payment, although receipts were shown for the payments of interest, and no effort was made on the part of defendant to fix the time and place of the alleged payment. The testimony on this point is indirect and rather vague, and it is unfortunate, if this payment was really made, that the reference was not brought on in the lifetime of Judge Thomason, who could have furnished direct evidence on this point, and that it should have been left in its present unsatisfactory shape. In the light of the above testimony, I find as follows: (1) That the note sued on herein was usurious in its inception, but, if not usurious, payments of interest were made upon it from the date of its maturity up to and including the payment of January, 1897; (2) that Judge Thomason was the agent and attorney of plaintiff throughout these transactions; (3) that the evidence is not sufficient to show the payment of one hundred dollars, and hence same is disallowed. The questions of law involved herein are new, and rather difficult to solve. The plaintiff demurred to the answer on two grounds: (1) That the counterclaim is based upon a statutory remedy in the nature of a penalty, the right of action on which does not survive; and, (2) if it does survive, it does not survive on behalf of the parties who are now claiming its benefits." The special master concluded his report as follows: "From these conclusions it follows that the plaintiff must recover of the defendant merely the fact of the note, without interest or costs. ***" The circuit judge confirmed the said report, and rendered judgment of foreclosure.

The appellants' first exception assigned error on the part of the circuit judge as follows: "(1) Because he did not sustain the defendants' first exception to the report of the said referee, which was as follows: '(1) The referee erred in allowing the statutes of limitation to be interposed by the plaintiff as an amendment to their reply;' the error complained of being that the said referee allowed an amendment to plaintiff's reply by allowing the statutes of limitation to be placed in the said reply after the testimony had closed." The defendants alleged in their answer that the said agreement was usurious, and set up as a counterclaim the yearly payments of $60 for five years, aggregating $300, and double the amount of alleged usurious interest, to wit, 6 per cent. on $600 for five years, amounting to $180. The special master in his report states correctly the doctrine that the statute of limitations has no application to a case like this; citing Agency Co. v. Gillam, 49 S.C. 369, 26 S.E. 990, 29 S.E. 203. So that, even if there was error, it was harmless, especially in view of the conclusions hereinafter announced.

The second exception imputes error as follows: "In not sustaining defendants' second exception to the report of the referee, which was as follows: '(2) The referee erred in sustaining the first ground of demurrer: (a) In holding that a counterclaim based upon a statutory remedy in the nature of a penalty does not survive; (b) in holding that the counterclaim based upon a statutory remedy in the nature of a penalty does not survive to the administrators, heirs at law and distributees of the deceased.' Also, 'in sustaining the first ground of plaintiff's demurrer' Wherein it is respectfully submitted that the circuit judge erred: (a) In sustaining the referee, and in holding that a counterclaim based upon a statutory remedy is in the nature of a penalty, and does not survive. (b) In sustaining the referee, and in holding that it does not survive to the administrators, heirs at law, and distributees of the deceased. (c) In sustaining the referee, and in holding that the counterclaim set up herein is in the nature of a penalty, or is a penalty. (d) In sustaining the referee, and in considering the oral ...