Pyross v. Fraser

• Decision Date: 24 April 1909
• Parties: PYROSS v. FRASER.
• Court: South Carolina Supreme Court

64 S.E. 407

82 S.C. 498

PYROSS v. FRASER.

Supreme Court of South Carolina

April 24, 1909

Appeal from Common Pleas Circuit Court of Georgetown County.

Action by Richard Pyross against John W. Fraser. From a judgment for plaintiff, defendant appeals. Affirmed.

T. St Mark Sasportas, for appellant.

M. W Pyatt, for respondent.

WOODS J.

This action was brought for the foreclosure of a mortgage on land in the city of Georgetown given by the defendant to the plaintiff to secure a bond for the sum of $250, the purchase money of the land. The complaint alleged the balance due at the time of the commencement of the action to be $117, with interest and attorney's fees. The defense alleged in the answer was tender on March 14, 1905, of the sum of $67, as the full amount then unpaid. The issues were referred to a referee, who reported that the last installment of the bond became due on July 20, 1905, and on that day the entire sum due by the defendant was $47, and that the defendant's tender on March 14, 1905, was not a legal tender, and did not discharge the lien of the mortgage, because the tender was made before the last installment fell due, and the mortgagee could not be compelled to accept his debt until maturity. The circuit court sustained the referee and made a decree of foreclosure.

Few adjudications of the question here made as to the right of a debtor to pay his debt before maturity are to be found, for the reason that a creditor rarely refuses to accept a premature tender of his debt when it includes interest to the date of maturity. In all the cases, however, where the question has been decided under the common law, it has been held that the creditor cannot be compelled to give up his investment before maturity. Quynn v. Whetcroft (Md.) 3 Har. & McH. 136, 1 Am. Dec. 375; Abbe v Goodwin, 7 Conn. 377; Brown v. Cole, 14 Sim 427, 60 Eng. Reprint. 424. To hold otherwise would be to change the contract of the parties. The creditor may, however, waive his right to insist on strict compliance with the contract.

In this case it was admitted the plaintiff received from the defendant without objection a partial payment of $15 of the last installment on 15th February, 1904, long before it became due. The argument is that this showed waiver of right to insist on postponement of payment of the remainder until maturity. But this favor, extended to the defendant as to part of the debt, did not bind...