Bowen v. Barksdale

• Citation: 33 S.C. 142,11 S.E. 640
• Parties: Bowen. v. Barksdale et al.
• Decision Date: 21 June 1890
• Court: United States State Supreme Court of South Carolina

11 S.E. 640

33 S.C. 142

Bowen.

v.Barksdale et al.

Supreme Court of South Carolina.

June 21, 1890.

Interest—Two Funds—Subrogation.

1. Two of the defendants, as principal and surety, executed the following note to plaintiff: "Twelve months after date, with interest from date, —ten per cent, per annum, —we or either of us promised to pay * * * eight hundred dollars, * * * and, if not paid at maturity, the interest to be added to the principal and bear interest, and so continue until the note is paid." Held, the rate was intended to be 10 per cent, until the note was paid, and it was error to reduce it to the legal rate of 7 per cent, after maturity.

2. Where a note was secured by a mortgage on a certain tract of land, in which, by proceedings under a subsequent judgment, a homestead was set off, the mortgagee must exhaust the homestead before proceeding against the rest of the tract.

8. Where a surety on the mortgage note paid part of it, he was entitled to be subrogated to the right of the mortgagee, and to receive payment before subsequent judgment creditors.

Appeal from common pleas circuit court of Laurens county; James F. Izlar, Judge.

Haskill & Dial, for plaintiff appellant.

Ferguson & Featherstone, for defendants appellant, N. L. Barksdaleand T. N. Barks-dale.

W. H. Martin, for respondent.

Simpson, C. J. In February, 1875, the defendant N. L. Barksdale, with the defendant Burns as his surety, made and executed to the plaintiff a sealed note, of which the following is a copy: "$800. Twelvemonths after date, with interest from date, —ten per cent, per annum, —we, or either of us, promised to pay Emeline Bowen eight hundred dollars, for value received; and, if not paid at maturity, the interest to be added to the principal, and bear interest, and so continue until the note is paid. Witness our hands and seals, February 26th, 1875. [Signed] N. L. Barksdale. [Seal.] Christopher Burns. [Seal.] " Barksdale secured the note by a mortgage of certain real estate situate in Laurens county, containing 300 acres, more or less, which was executed at the same time of making the note; the mortgage being duly recorded, etc. Several payments were made on this note by Burns, the surety: and certain payments were also made thereon by the defendant T. N. Barksdale, a son of the defendant N. L. Barksdale, who also had made certain payments thereon. But these credits did not pay the note in full. In April, 1884, defendant N. L. Barksdale sold to W. H. Barksdale a portion of the mortgaged premises—some 70 acres—for $300, which amount being credited on the note, the land thus sold was released from the mortgage. Some time after the execution of the mortgage, defendants Traynham & Dial, Toliver Robertson, and T. N. Barksdale each recovered judgments against the said N. L. Barksdale for certain amounts; and under the judgment of Traynham & Dial a homestead of 95 acres of the land was set off to the said N. L. Barksdale, including the dwelling-house and adjoining lands, which was confirmed by the court, leaving 150 acres of the mortgaged premises, of which a plat was made, representing the land after deducting the portion sold to W. H. Barksdale, above, and the home stead. Under these circumstances, the action below was instituted by the plaintiff to foreclose her mortgage for the balance due on her note. The judgment creditors were all made parties, and the following questions arose, and were decided by his honor, Judge Izlar, before whom the case was tried: (1) The rate of interest which the note of plaintiff should bear after maturity; (2) whether the plaintiff should be required to exhaust the homestead before going upon the other land, under the double-fund doctrine; (3) whether Christopher Burns, the surety, was entitled to be subrogated to the rights of the plaintiff in the mortgage and note to...