Moses v. Hatfield

• Decision Date: 06 October 1887
• Citation: 3 S.E. 538,27 S.C. 324
• Parties: MOSES v. HATFIELD.
• Court: South Carolina Supreme Court

3 S.E. 538

27 S.C. 324

MOSES v. HATFIELD.

Supreme Court of South Carolina

October 6, 1887

Appeal from Sumter county; WALLACE, Judge.

Earle & Purdy, for appellant.

Moises & Lee, for respondent.

McIVER J.

The object of this action is to foreclose a mortgage of real estate. In the complaint it is alleged that the mortgage was given by defendant to F. H. McEachern & Co., nominally to secure the payment of a certain note described in the mortgage, but really to secure the payment of advances to be made by the mortgagees to the defendant for the purpose of enabling him to carry on his farm for the year 1885; that the note mentioned was never given, but advances were made, and there remained due thereon an amount less than the amount specified in the note, for which judgment was claimed. It was also alleged that said McEachern & Co. had, for value assigned to the plaintiff, before the commencement of this action, the said mortgage, together with the account for advances to the plaintiff. The defendant, by his answer, set up three defenses: " First, that he denies each and every allegation of said complaint, except such as may be hereinafter expressly admitted second, that the debt intended to be secured by said mortgage has been discharged by payment; third tender of the balance claimed to be due by the plaintiff, and refusal thereof."

F. H McEachern, one of the original mortgagees, testified, in substance, as follows: That, when applied to by defendant for advances, he agreed to make such advances, provided the same were secured by a mortgage on his real estate, and also a lien on his crop, and a mortgage on his personal property; that this was done by defendant,--the said witness stating to the defendant, at the time the papers were executed, "that his real estate must stand good for any advances made to him, and the lien on his crop and the mortgage of personal property must be a secondary consideration;" that this was agreed to by defendant; that the advances were made, and that the balance due thereon was the amount stated in the complaint; and that such balance, together with the mortgage, had been assigned to the plaintiff. On his cross-examination this witness testified that the lien on the crop and the mortgage on the personal property had been assigned to Trumbo, Hinson & Co.; that the horse mortgaged was dead; and that the four bales of cotton delivered under the lien "were worth about forty dollars, less the expense of picking, ginning, bagging, and ties, which the witness paid for," as well as $25 rent due by defendant. This witness, after examining his books, which were offered in evidence, testified that all proper credits had been given, leaving the balance due as stated in the complaint. The book-keeper of McEachern & Co., who was one of the subscribing witnesses to the mortgage, proved its execution, as well as the balance due on the account for advances, and the mortgage was put in evidence. The counsel for defendant, at the proper time, (the testimony having been taken by the master,) objected to all parol testimony as to what passed between the parties at the time and before the mortgage was executed, upon the ground that the papers must speak for themselves.

At the close of plaintiff's testimony, counsel for defendant moved that the complaint be dismissed, upon the following grounds: First, because the testimony by parol above stated was improperly admitted; second, that the note referred to in the mortgage was not produced, and its absence not accounted for; third, that there was no evidence that the note had been assigned to plaintiff; fourth, that the assignment of the mortgage alone was wholly nugatory, and passed no rights to the plaintiff; fifth, that there was no evidence that the mortgagees ever assigned the mortgage to the plaintiff. The motion was overruled, and, no testimony on the part of the defendant having been introduced, judgment of foreclosure and sale was rendered as prayed for in the complaint. From this judgment defendant appeals, upon the grounds, substantially, taken in support of the motion to dismiss the complaint, and upon the further ground that there was neither allegation nor proof as to who composed the firm of F. H. McEachern & Co.

It will be observed that the rights of third persons are not involved in the present inquiry, but only those of the mortgagor, and the plaintiff as assignee of the mortgage. Trumbo, Hinson & Co. are not parties; and their rights, if they have any under the assignment of the lien and mortgage of personal property, are in no way involved in the present controversy, and cannot be affected by any decree herein. It may be that their claims have been fully satisfied; and if so, to allow any possible rights they may have acquired to be used for the protection of the defendant, would result in enabling the defendant to evade the payment of what seems to be a just debt. If, however, they have not been satisfied, and the defendant had any just reason to fear that he might also be liable to them, his course was plain: to protect himself by demanding that they should be made parties, which he has not seen fit to do. Indeed, it does not appear that any account or other evidence of debt against the defendant has been assigned to Trumbo, Hinson & Co., but simply the agricultural lien, and the mortgage on the personal property; whereas it does appear in this case that not only the mortgage here brought in question, but also the debt which it is alleged it was given to secure, has been...