Merchants' & Planters' Nat. Bank of Union v. Hunter

• Decision Date: 23 February 1920
• Docket Number: 10373.
• Citation: 102 S.E. 720,113 S.C. 394
• Parties: MERCHANTS' & PLANTERS' NAT. BANK OF UNION v. HUNTER ET AL.
• Court: South Carolina Supreme Court

102 S.E. 720

113 S.C. 394

MERCHANTS' & PLANTERS' NAT. BANK OF UNION v. HUNTER ET AL.

No. 10373.

Supreme Court of South Carolina

February 23, 1920

Appeal from Common Pleas Circuit Court of Union County; T. J Mauldin, Judge.

Action by the Merchants' & Planters' National Bank of Union S. C., against James E. Hunter and others. From judgment for plaintiff, the defendant Norman Murphy Company appeals. Reversed.

John K Hamblin, of Union, for appellant.

J. G Hughes, J. A. Sawyer, and P. D. Barron, all of Union, for respondents.

FRASER J.

The plaintiff brought this action to foreclose a mortgage. On the 22d of May, 1895, J. C. Hunter executed his bond and mortgage to J. D. Smith for the sum of $1,000. Mrs. Smith assigned the bond and mortgage to Mrs. F. Elmira Hunter, and Mrs. Hunter to the plaintiff. J. C. Hunter died on the 22d day of November, 1915. The record in this court shows the following entry on the record of the mortgage:

"Received on April 22, 1911, of J. C. Hunter, five dollars on within bond and mortgage.

[Signed] Mrs. F. E. Hunter, Assignee."

"Receipt entered on record May 22, 1915.

[Signed] I. Frank Peake, Clerk of Court."

Norman-Murphy Company, one of the defendants, a creditor of J. C. Hunter, set up the statute of limitations and claimed among other things that the lien of the mortgage has expired.

There are twenty-five exceptions; but, in the view that this court takes of the case, only one question need be considered, and that is: Has the lien of the mortgage expired?

Section 3535, Code of Laws 1912, vol. 1, provides:

"No mortgage * * * shall constitute a lien upon any real estate after the lapse of twenty years from the date of the creation of the same: Provided, that if the holder of any such lien * * * cause to be recorded upon the record of such mortgage * * * a note of some payment on account, or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage * * * shall be, and continue to be, a lien for twenty years from the date of the record of any such payment on account or acknowledgment."

The question is: Has the lien of this mortgage expired? The note must be of a payment, and not of an ex parte credit.

A payment on a bond or note is an acknowledgment of the existence of the debt. There is a presumption of payment after the lapse of 20 years. In order to prevent the operation of this presumption, there must be an acknowledgment of the existence of...