Holliday v. Hughes

• Decision Date: 04 January 1899
• Parties: HOLLIDAY. v. HUGHES et al.
• Court: South Carolina Supreme Court

31 S.E. 867

54 S.C. 155

HOLLIDAY.

v.HUGHES et al.

Supreme Court of South Carolina.

Jan. 4, 1899.

Mortgages—Jury—Equitable Issues — Error— Finding—Decree—Legal Issues.

1. It is error to submit to a jury the question whether a mortgage is void, this being an equitable issue for the court.

2. Error in submitting an equitable issue to the jury is not cured by the court's decree concurring in the finding, where a legal issue was also submitted, and the general, verdict might have been based on either.

Appeal from common pleas circuit court of Horry county; D. A. Townsend, Judge.

Foreclosure by J. W. Holliday against C. A. Hughes and others. There was a decree for defendant W. H. Howell, and plaintiff appeals. Reversed.

Johnsons & Quattlebaum, for appellant

Robt B. Scarborough, for respondents.

McIVER, C. J. This was an action to foreclose a mortgage on real estate given by the defendants C. A. Hughes and F. D. Hughes to the plaintiff on the 16th of June, 1886. to secure the payment of a bond of same date to said plaintiff for the sum of $544.85, with interest from date at the rate of 10 per cent per annum. The complaint is in the usual form, with the additional allegation "that the defendant W. H. Howell claims to have acquired an interest in the mortgaged land subsequent to the date of the mortgage." The defendants C. A. Hughes and F. D. Hughes neither answered nor demurred, but made default. The defendant Howell filed an answer, in which he sets up two defenses: (1) That since the date of the alleged mortgage he has acquired the legal title to the mortgaged premises by a purchase thereof at a tax sale, whereby the lien of said mortgage was devested, by operation of law, "and this defendant holds the said lands and premises as legal owner in fee, free and discharged of any and all incumbrance, right, or claim of the plaintiff under or by virtue of said pretended mortgage, and said lands are not subject to a decree of foreclosure." (2) That the debt which the alleged mortgage was given to secure was not the debt of the defendant C. A. Hughes, who is a married woman, the wife of the defendant F. D. Hughes, and the sole owner of the mortgaged premises, but, on the contrary, was the debt of her husband, F. D. Hughes, and she, being his wife at the date of the mortgage, had no power to bind her separate estate for the payment of his debt. It is stated in the "case" that the case was "heard before his honor, Judge Townsend, and a jury, fall term, 1897. Plaintiff moves for judgment pro confesso against C. A. Hughes and F. D. Hughes, who have not answered. Defendant objects. Objection sustained. Plaintiff excepts." After several instructions as to the effect of the tax title set up by the defendant Howell, the jury were instructed that if they find, as matter of fact, "that the land covered by the mortgage was the property of the defendant C. A. Hughes; that she is a married woman; was such when the mortgage was executed; and that the mortgage was given to secure the debt of her husband, —then the mortgage is void, and their verdict should be for defendant Howell." The jury returned a verdict in the following form: "For defendant H. L. Buck, Fore-man." After this verdict was rendered, the circuit judge rendered his decree, in which, among other things, he says: "The two questions raised by the pleadings were thus fairly before the jury. They found for the defendant Howell. I take that the verdict is responsive to the whole issue, both as to the...