Nichols v. Briggs

• Court: South Carolina Supreme Court
• Writing for the Court: MCGOWAN.
• Citation: Nichols v. Briggs, 18 S.C. 473 (S.C. 1883)
• Decision Date: 15 February 1883
• Parties: NICHOLS v. BRIGGS.

18 S.C. 473

NICHOLS

v.BRIGGS.

Supreme Court of South Carolina.

Feb. 15th, 1883.

1. So much of an answer as stated the reasons which actuated the defendant in interposing a plea of the statute of limitations, was, on motion, stricken out by the Circuit judge as irrelevant. Held, that in this there was no error.

2. The act of 1880 (17 Stat. 415), amending the code, so as to make twenty years the period of limitation of actions on contracts secured by mortgage, had no retroactive force, and did not apply to a sealed note, which fell due in 1875.

3. Under the statute then of force such note was barred in six years, but not discharged, and a mortgage of lands given to secure the note retained its lien, and might be foreclosed at any time within twenty years of its execution.

Before COTHRAN, J., York, March, 1882.

Action by John Nichols against B. F. Briggs. The opinion states the case.

The Circuit decree was as follows:

The sole question discussed before me by the counsel engaged in the cause, and with much elaboration, may be thus stated: Can an action for foreclosure of a mortgage of real estate be maintained, where the note which it is given to secure has been barred by the statute of limitations? It cannot be questioned, since the decision of the court in Arnold v. McKellar, 9 S. C. 335, that the amendment to section 113 of the code (see Lynch's Code, p. 53), as of the 25th of November, 1873 (see A. A. of that year), notwithstanding the supposed irregularity of its ratification and the subsequent reënactment of it in the A. A. of 1875, is valid and effectual; and that sealed notes in South Carolina are subject to the statutory limitation of six years, as therein provided.

It is also true, as matter of law, that this action having been commenced in January of the present year, the statutory bar is complete, unless there be some existing cause to prevent its operation. No proof to this effect was offered upon the trial, and no suggestion of the kind was made in argument by the learned counsel for the plaintiff, who insisted, with the support of many authorities, that he was entitled to a decree of foreclosure of his mortgage, non obstante. The defendant's counsel, with equal zeal, as stoutly denied the plaintiff's right in this regard. The question thus presented is one of some difficulty of determination, owing to the great conflict of foreign authorities upon the subject, (to which, I am forced to express my regret, that we are becoming so much addicted,) as also on account of the apparent absence of any direct adjudication of the matter by our own courts.

The plaintiff's counsel, with great propriety, insists that the statute of limitations does not discharge or extinguish the debt, but only takes away the remedy for enforcing the payment of it. Since the case of Sturgess v. Crowninshield, decided by the Supreme Court of the United States as far back as 1819, and reported in 4 Wheat. 122, and followed by numerous decisions of our own court, this doctrine may be accepted without question. He further insists, and apparently with equal confidence, that though the debt be barred, the lien of the mortgage should be enforced; and to support this proposition, cites chapters 26 and 27 of 2 Jones Mort., and the numerous authorities there to be found.

Upon the other hand, the learned counsel for the defendant contends: That in South Carolina the mortgage is but an incident of the debt, deriving its vitality and perpetuity only from the debt itself, and that it cannot, in the very nature of things, survive the substance of which it is but the mere shadow; that the act of 1791, so explicit in this regard, was a departure from the English doctrine and has wrought a fundamental change in the nature and character of mortgages, and of the means of enforcing them; that our own decisions have steadily maintained this divergence; citing numerous authorities, among others, Simons v. Bryce, 10 S. C. 367;Warren v. Raymond, 12 S. C. 21;Reeder v. Dargan, 15 S. C. 175.

And not with unbecoming confidence does he rely upon the opinion of Dargan, Ch., in Gibbes v. Holmes, 10 Rich. Eq., 487, in which that learned judge says: “If a mortgage be given to secure a simple contract debt, when the debt is barred, the mortgage is discharged. Anything that satisfies the debt discharges the mortgage.” Unfortunately for the defendant, however, this is but obiter dictum, as the question to which this would otherwise have been decisive was not before the court. Nevertheless, as the positively expressed opinion of a very great judge in his own times-and there were giants in those days-it is entitled to great consideration. The added expression above “Anything that satisfies the debt,” &c., seems to me, however, greatly to weaken the force of the first proposition; for whatever contention there might be as to that, there never could have been a doubt as to the second, which clearly relates to satisfaction of the debt-not to any suspension or abridgment of the remedy. Satisfaction is the whole object, aim and end of the law in all things. I have ventured to say this much in the way of respectful criticism, for the reason that the expression is very positive; it was much relied on by the defendant's counsel, and if other reason be needed, it may be found in what Judge Wardlaw said under like circumstances in Mitchell v. Bogan (I believe) in venturing to differ with Judge Nott.

It might not be matter of unprofitable speculation to inquire how far this expression may have been evoked by the peculiar remedy for foreclosure, furnished by the act of 1791, which, it will be remembered, was a proceeding at law, and was bottomed upon “judgment being obtained in the Court of Common Pleas.” But I forbear. It surely could never have been successfully contended in South Carolina that the right of foreclosure in equity, which became, long before the abolition of the Court of Equity, as such, the universal mode of proceeding, was absolutely dependent upon the character or quality of the bond or debt intended to be secured.

In the case of Gillett v. Powell, Spears Eq. 143, property was sold and bonds and mortgages taken for the purchase-money. Foreclosure of one of these was sought, and it was discovered that the bond had been altered in a material part and thereby made void. There was no reference in the mortgage to the bond as produced in its mutilated condition. Chancellor Harper, in delivering the circuit decree, which was affirmed on this point by the whole court, said: “But I am of opinion that the alteration of the bond does not affect the mortgage, and that it must be taken as evidence of the debt. If the mortgage alone had been taken, there can be no doubt but that it would have constituted a specialty debt. At law, it is regarded as a conveyance of the property; in equity, as evidence of the debt intended to be secured by it. *** The defendant is estopped by his deed to deny the existence of the bond.” See upon this point, in part, McCaughrin & Co. v. Williams, 15 S. C. 505.

Perhaps what has been already said is sufficient to show the bent or inclination of my mind; but in the view which I shall now take of this case, it is not necessary or proper even that I should make a decision of this vexed and interesting question. It is somewhere related of King James I. of England, who largely affected learning and the society of learned men, that upon one occasion he summoned to his presence the savans of his time and propounded to them the following inquiry: “Why is it that a fish placed in a bowl of water filled to the brim will not displace a particle of the contents of the vessel?” Many learned and scientific and highly satisfactory replies were given by the several philosophers interrogated in turn, until the last of the wise men cautiously inquired, before undertaking to account for the alleged phenomenon, if, indeed, the fact were so? Actual experiment showed that it was altogether otherwise. Can it be so in this case? Let us see:

On June 5th, 1874, the defendant made and delivered his sealed note to the plaintiff, secured by the mortgage in question, for the sum of $500, payable twelve months after date. On June 5th, 1875, the note became due, and the statute began to run. On December 24th, 1880, the legislature (17 Stat. 415) amended section 113 of the code, by extending the time for bringing actions “upon bonds or other contracts in writing, secured by mortgage of real property,” to twenty years. The statute of limitations had operated upon the sealed note before the court for about five and a half years, and it had still about six months to run before the bar should be complete. What effect did the extension have upon “the contract in writing” secured by the mortgage here? The answer will be found in the case of Wardlaw v. Buzzard, 15 Rich. 160, and is in these words:

“*** Nor was it denied that the legislature might extend the statute of limitations before the bar was complete without impairing the obligation of the contract. In fact, its extension gives additional vitality to the contract, and furnishes no ground of complaint to the debtor or creditor. The debtor, if he wishes to pay can do so; and if the creditor desires to sue, there is nothing in the extension to prevent him.” This seems to me to be the conclusion of the whole matter.

Wherefore, it is ordered, adjudged and decreed that it be referred to the clerk of the Court of Common Pleas for the county of York, to inquire into and compute the amount due upon the demand herein sued upon; and that upon such ascertainment, that the plaintiff have judgment of foreclosure of the premises mortgaged and described in the complaint, in the usual form, for his debt, interest and costs; and that the plaintiff herein have leave to move for any further order that may be necessary to effectuate the judgment herein rendered.

Messrs. Hart & Hart, for appellant.

Mr. W. B. Wilson, contra.

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