Gunter v. Addy

• Decision Date: 11 July 1900
• Citation: 36 S.E. 553,58 S.C. 178
• Parties: GUNTER v. ADDY et al.
• Court: South Carolina Supreme Court

36 S.E. 553

58 S.C. 178

GUNTER v. ADDY et al.

Supreme Court of South Carolina

July 11, 1900

Appeal from common pleas circuit court of Lexington county; James Aldrich, Judge.

Action by U. X. Gunter against D. U. Addy and others. From a judgment in favor of plaintiff, defendant the Dundee Mortgage & Trust Investment Company appeals. Affirmed.

G. T Graham, for appellant.

Meetze & Muller, for respondent.

GARY A. J.

So much of the circuit judge's decree as is necessary to understand the questions presented by the exceptions is as follows:

"This action, instituted in 1897, and heard at the fall term, 1899, came before this court on the pleadings the testimony taken by a special referee, and the argument of counsel. The Dundee Mortgage & Trust Investment Company Limited, answered the complaint, and has contested the claim of the plaintiff. The other defendants have not answered. At least, no such answers were submitted to the court. The defendant D. U. Addy on January 31, 1883, made and delivered his note, whereby he promised to pay to plaintiff the sum of $919.18, with interest from date at ten per cent. per annum; interest to be paid annually, and if not so paid, to become principal, and bear interest at ten per cent. The consideration of this note is a prior note, a small open account, and $5 or $10 paid in cash. To secure said debt, defendant D. U. Addy on the same day executed and delivered to plaintiff a mortgage upon 'a certain tract or parcel of land, known as "Gable Lands," on waters of Cut-Log Branch, county and state aforesaid, bounded on the north side by lands of Bell Court, on the east by lands of Mrs. Betty Smith, on the south by lands of Wesley Risenger, on the west by lands of Alanzo Rose'; and the same was duly recorded on February 15, 1883. D. U. Addy on March 24, 1884, to secure a loan of $2,200 then paid to him in cash by the Dundee Mortgage & Trust Investment Company, Limited, executed and delivered to said defendant company a mortgage of real estate, covering, with other lands, the premises mortgaged to plaintiff as above stated. This mortgage was duly recorded on March 28, 1884. The condition of the note or bond given as aforesaid by the said D. U. Addy to plaintiff, as stated in the said mortgage, when executed, delivered, and recorded, was 'for the payment of the full and just sum of nine hundred and nineteen (919) dollars and 18 cents.' Afterwards, to wit, on February 16, 1886, the following words were inserted, written upon the face of said mortgage, immediately after the words just cited, to wit, 'with interest from date at ten per cent. per annum; interest to be paid annually, and, if not so paid, to become principal, and bear interest at ten per cent.' At the same time the following words were inserted, written in said mortgage just after the description of the mortgaged premises, to wit, 'containing one hundred and sixty-five (165) acres, more or less.' It is apparent from an inspection of said mortgage that the words above stated are not in the same handwriting nor in the same ink as in the body of the mortgage. I may be mistaken as to the handwriting. The same person may have written both the original instrument and the words inserted.

"As the plaintiff submitted his said mortgage in evidence, and it appears to have been altered, it was incumbent upon plaintiff to explain this appearance. 1 Greenl. Ev. § 569; Vaughan v. Fowler, 14 S.C. 358. Plaintiff has fully and satisfactorily explained the said alterations. The said words were inserted in said mortgage on February 16, 1886, at the time when Mrs. Addy, the wife of defendant Addy, signed her renunciation of dower on said mortgage, and were put there with the consent (indeed, at the instance) of D. U. Addy himself. The rule is well settled that 'any alteration of a note in a material part, after its execution, without the assent of the maker, renders it void.' Kennedy v. Moore, 17 S.C. 466; Stagg v. Cepoon, 1 Nott & McC. 162; Miller v. Starr, 2 Bailey, 359; Vaughan v. Fowler, 14 S.C. 355. There was no fraud or suggestion of fraud on the part of any one in making the said alterations. It is reasonable to conclude that D. U. Addy only desired to make the mortgage conform to the wording of the note, which was and is correct, and to make the description of the mortgaged premises more certain. I do not think that the defendant the Dundee Mortgage & Trust Investment Company, Limited, can complain of this ruling. When it lent money to D. U. Addy, it had full constructive notice of plaintiff's mortgage as recorded. With this knowledge, it lent money to D. U. Addy, and took a junior mortgage upon the premises. The insertions or alterations

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