Matheson v. Rogers

• Decision Date: 12 November 1909
• Parties: MATHESON v. ROGERS et al. [D1]
• Court: South Carolina Supreme Court

65 S.E. 1054

84 S.C. 458

MATHESON v. ROGERS et al. ^[D1]

Supreme Court of South Carolina

November 12, 1909

Appeal from Common Pleas Circuit Court of Marlboro County; Ernest Gary, Judge.

Action by A. J. Matheson against W. A. Rogers and another. From a judgment for inadequate relief, plaintiff appeals. Affirmed.

Townsend & Rogers and Stevenson, Matheson & Stevenson, for appellant. McColl, McColl & Le Grand, for respondents.

JONES C.J.

On December 27, 1904, plaintiff conveyed to defendants certain real estate with covenants of warranty, and to secure balance of purchase money defendants on the same day executed their bond, secured by a mortgage of the premises, for $12,000 first installment of $1,000 payable January 1, 1906, and a like sum January of each year thereafter, until January 1 1915, when the last installment of $3,000 was payable, with all interest from January 1, 1905, at the rate of 8 per cent per year, payable annually on every 1st day of January unpaid interest to bear interest at the same rate, and, in case of default in payment of interest or principal when due, the whole debt to become collectible. The mortgage contained also a stipulation that, "in case the debt secured by this mortgage or any part thereof is collected by suit or action, or this mortgage be foreclosed the said mortgagor shall be chargeable with all costs of collection, including ten per cent., of the principal and interest on the amount involved as attorney's fees," etc. The first installment, with all interest, was paid. On September 5, 1906, before the next installment was due, defendants, having discovered that plaintiff, previous to his deed to defendants, had conveyed away to others a considerable portion of the timber on said premises, as well as a small portion of the land, and having failed to secure adjustment with plaintiff, brought action for damages for breach of the covenant of warranty, and on December 9, 1908, recovered judgment against plaintiff for $2,586.51. This sum was immediately paid by plaintiff to defendants, and by defendants back to plaintiff as a credit on the mortgage debt. In the meantime, on October 26, 1907, claiming default had been made in the payment of installment due on January 1, 1907, plaintiff brought this action to foreclose for the whole mortgage debt, and for 10 per cent, of principal and interest additional as attorney's fees. Defendants made answer, denying allegation as to amount due, setting up tender of the mortgage debt, and breach of the covenant of warranty. After payment of the judgment of $2,586.51; in the action for breach of warranty, plaintiff by supplemental reply set up this payment in exoneration of the breach. The circuit court, upon the testimony taken, overruled defendants' plea of tender, and, adopting the judgment of the court for $2,586.51, as covering the breach of warranty, allowed this sum as a credit as of date of the judgment, and gave judgment of foreclosure against defendants for $11,204, principal and interest of the debt, for $300, as attorney's fees, and decreed that plaintiff should pay the costs.

Appellant contends by the terms of the contract recovery should have been allowed for $1,120.40, as attorney's fees, and that there was no evidence before the court as to what was a proper attorney's fee, except the papers fixing it at 10 per cent. Appellant further contends that by the terms of the contract plaintiff was entitled to recover costs, and, if not, there were no circumstances in the case warranting the action of the court in imposing costs upon plaintiff. Except in a clear case of abuse of discretion, or the violation of some rule of law, this court will not interfere with a decree fixing liability as to costs in an equity cause. Brown v. Brown, 44 S.C. 383, 22 S.E. 412; Williams v. Jones, 74 S.C. 281, 54 S.E. 558; Cauthen v. Cauthen, 81 S.C. 315, 62 S.E. 319; Anderson v. Silcox, 82 S.C. 117, 63 S.E. 128. The taxable costs of an action are the creatures of statute, and not of the contract of the parties, and by the express terms of section 323, Code Civ. Proc. 1902, costs in chancery cases do not follow the event of the suit, except where the court does not otherwise order. The court well vindicates its action in declaring that the plaintiff's default in making good titles lies at the root of all contention and litigation in this case; that plaintiff committed a breach of warranty, which he does not dispute; that defendants were deterred from making their payments at the time stipulated only by the knowledge that plaintiff had failed to make to them good title; and that the defendants were not seeking to escape the payment of their just obligation, but that they were making every effort to induce plaintiff to make just allowance and compensation for his failure to perform his contract.

As to attorney's fees the circuit court held as follows "The question of attorney's fees for the plaintiff in this action should rest on principle on the same grounds as the other costs in this action, and the equity of the cause should not permit ...