Porter v. Jefferies

• Decision Date: 18 November 1893
• Citation: 18 S.E. 229,40 S.C. 92
• Court: South Carolina Supreme Court
• Parties: PORTER et al. v. JEFFERIES et al.

18 S.E. 229

40 S.C. 92

PORTER et al.

v.JEFFERIES et al.

Supreme Court of South Carolina.

Nov. 18, 1893.

Covenant or Warranty—Action for Breach-Mistake of Law—Estoppel—Usury.

1. in an action for breach of covenants of warranty in a mortgage, the attorney who drew the mortgage cannot testify to previous conversations of the parties as to their intentions, in the absence of an allegation or proof that any fraud was intended by any of the parties to the mortgage, since its true construction must be gathered from the terms in which the intentions of the parties were expressed in writing.

2. in an action against executors on covenants in a mortgage executed by them, an answer alleging, generally, that, in executing the mortgage, defendants did not intend to bind themselves personally on the covenant of warranty, and that plaintiffs attorney told them they would not be so bound, does not state facts constituting a defense, and testimony as to the alleged mistake is properly excluded.

3. A mistake of law as to the construction of a written instrument is not a ground for equitable relief.

4. A mortgagee is not estopped to sue for breach of the covenant of warranty in the mortgage because defendant executors executed it under a representation of plaintiff's attorney that they would not be bound personally by the covenant, since defendants cannot take the benefit of the mistake as to the legal effect of the terms of the mortgage, without allowing plaintiff the benefit of the misrepresentation, though innocently made, as to the title to the land offered by defendants as security for the money obtained.

5. Where the maker of a note tainted with usury borrowed from the holder, and incorporated the two debts into a new note secured by a mortgage, it was not error to charge that the new loan was not tainted with usury by the fact that the original note was tainted.

6. Since Acts 1882, (18 St. 36,) providing for a forfeiture of double the sum received as usurious interest, requires it to "be collected by a separate action or allowed as a counterclaim to any action for the principal sum, " a counterclaim for such forfeiture is properly excluded in an action for breach of a covenant of warranty in a mortgage given to secure a usurious note.

Appeal from common pleas circuit court of Spartanburg county; J. J. Norton, Judge.

Action by John A. Porter and another, as executors of R. C. Oliver, deceased, against John R. Jefferies and Eber C. Allen, for breach of covenants of warranty contained in a mortgage. From a judgment for plaintiffs, defendants appeal. Affirmed.

Stangarne Wilson, for appellants.

C. P. Sanders and D. E. Hydrick, for respondents.

McIVER, C. J. This action was originally commenced by R. C. Oliver, and upon his death continued in the name of his executors, the plaintiffs above named. The object of the action was to recover damages for the breach of covenants of warranty contained in a certain mortgage, a copy of which is set out in the case; but, as we propose to extract therefrom so much of the terms thereof as bear upon one of the points made by this appeal, it is unnecessary to set out themortgage in extenso. it seems that Woodward Allen, of whose will the defendants are the duly-qualified executors, being indebted to Jesse F. and John B. Cleveland in a large sum of money, during his lifetime executed a mortgage on 835 acres of land to secure the payment of said debt, and that after his death the defendants, being executors as aforesaid, desired to pay the Cleveland debt, because it was bearing a high rate of interest, and for this purpose borrowed from R. C. Oliver the sum of $3,500, and extinguished the Cleveland mortgage, giving to said R. C. Oliver a mortgage on the same land covered by the Cleveland mortgage. Subsequently, the defendants procured another loan from said R. C. Oliver, the amount of which, together with the amount then due on the former loan, was embraced in a new note, and secured by a new mortgage on the same land; and it is this new mortgage which contains the covenants, the breach of which constitutes the cause of action in the present case. So much of this last-mentioned mortgage as is pertinent to the questions raised by this appeal reads as follows: "We, John R. Jefferies and E. C. Allen, executors of the last will and testament of Woodward Allen, deceased, by virtue of the power given to us in said will and testament, of the county and state aforesaid, send greeting: Whereas, we, the said John R. Jefferies and E. C. Allen, executors as aforesaid, in and by a certain note bearing date the twenty-second day of February, A. D. 1884, promise to pay R. C. Oliver or order the sum of three thousand and seven hundred and twenty-five dollars, (.$3,725.00,) payable on the 1st day of January, 1885, with interest from the 1st of February, 1884, at 10 per cent per annum till paid. * * * Now, know all men that we, the said John R. Jefferies and E. C. Allen, in consideration of the said debt and sum of money aforesaid, and for the better securing the payment thereof to the said R. C. Oliver, according to the terms of the said note, and also in consideration of the further sum of three dollars to us, the said Jefferies and Allen, in hand well and truly paid by the said R. C. Oliver, * * * We, the said Jefferies and Allen, executors as aforesaid, have granted * * * being the tract on which Mrs. Allen, the widow of the late Woodward Allen, now resides, containing eight hundred and thirty-five acres, (835,) more or less, and being the tract of land of which the late.Woodward Allen, at the time of his death, was seised in fee. * * * And we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend, all and singular, the said premises unto the said R. C. Oliver, his heirs and assigns, from and against us and our heirs, executors, administrators, and assigns, and all persons lawfully claiming or to claim the same, or any part thereof." The attesting clause of the mortgage is in these words, "Witness our hands and seals this 22nd day of February, A. D. 1884, " and it is signed as follows: "John R. Jefferies, [L. S.,] Eber C. Allen, [L. S.,] Executors of W. Allen, deceased."

The breaches of this covenant of warranty, as assigned in the complaint, are as follows: (1) That by proceedings in this court, to which the defendants as well as the said R. C. Oliver were parties, it has been adjudged that three hundred and thirty-five acres of the land embraced in the mortgage did not belong to the said Woodward Allen, but was the individual property of his widow, Mrs. Harriet Allen, and therefore not liable to the lien of the mortgage. (2) That in the same or similar proceedings it has been adjudged that the said widow is entitled to both dower and homestead in so much of the mortgaged premises as remained after taking off the said 335 acres adjudged to be the individual property of Mrs. Allen. The defendants, in their answer, set up several defenses: (1) That of mistake in executing the mortgage; (2) estoppel arising from the representations made to them at the time of the execution of the mortgage by the attorney of Oliver; (3) estoppel arising from a former proceeding to which both Oliver and these defendants were parties; (4) that the lands of Woodward Allen, when sold under the mortgage, were bid off by R. C. Oliver at much less than their real value, and he should be required to credit his mortgage with the full value of the land bought by him; (5) usury in the note secured by the mortgage; (6) a counterclaim for double the amount of usurious interest paid on the note secured by the mortgage. The case came on for trial before his honor, Judge Norton, and a jury, and after his charge the jury found a verdict in favor of the plaintiffs for $603.98; and, judgment having been entered, the defendants appeal upon the several grounds set out in the record.

We will first take up those which impute error to the circuit judge in his rulings as to the admissibility of testimony. The first ground alleges error in refusing to allow Mr. Carlisle to answer the following question: "Was it not a fact that they [meaning the defendants] considered the land as belonging to Woodward Allen?" On turning to that part of the case where this question was objected to, we find that counsel for defendants explained...