Reid v. Stevens

• Decision Date: 24 March 1893
• Citation: 17 S.E. 358,38 S.C. 519
• Parties: REID et al. v. STEVENS.
• Court: South Carolina Supreme Court

17 S.E. 358

38 S.C. 519

REID et al. v. STEVENS.

Supreme Court of South Carolina

March 24, 1893

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

Action by George T. Reid and another against Matilda Jane Stevens to foreclose two mortgages. There was a decree for plaintiffs and defendant appeals. Modified.

The second mortgage sought to be foreclosed was as follows:

"Whereas I, the said M. J. Stevens, in and by a certain note or obligation bearing date the 20th of May, 1889, stand firmly held and bound unto Geo. T. Reid & Co. in the sum of eight hundred dollars, conditioned for the payment of the full and just sum of four hundred dollars, as in and by the said bond and condition thereof, reference being thereunto had, will more fully appear: Now, know all men, that I, the said M. J. Stevens, in consideration of the said debts and sum of money aforesaid, and for the better securing the payment thereof to the said Geo. T. Reid & Co. according to the condition of the said bond, and also in consideration of the further sum of three dollars to me, the said M. J. Stevens, in hand well and truly paid by the said Geo. T. Reid & Co. at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Geo. T. Reid & Co., all that tract or parcel of land lying and being situate in Edgefield county, and state aforesaid, said to contain fifty (50) acres, more or less, and bounded by lands of John C. Hipp, L. Reames, and Mary Stevens, together with, all and singular, the rights, members, hereditaments, and appurtenances to the said premises belonging, or in any wise incident or appertaining, to have and to hold, all and singular, the said premises, unto the said Geo. T. Reid & Co., their heirs and assigns, forever. And I do hereby bind my heirs, executors, and administrators to warrant and forever defend, all and singular, the said premises, unto the said Geo. T. Reid & Co., their heirs and assigns, from and against my heirs, executors, administrators, and assigns, lawfully claiming or to claim the same, or any part thereof: provided, always, nevertheless, and it is the true intent and meaning of the parties to these presents, that if I, the said Matilda J. Stevens, do and shall well and truly pay, or cause to be paid, unto the said Geo. T. Reid & Co., the said debt or sum of money aforesaid, with interest thereon, if any shall be due, according to the true intent and meaning of the said bond and condition thereunder written, then this deed of bargain and sale shall cease, determine, and be utterly null and void; otherwise, it shall remain in full force and virtue. And it is agreed by and between the said parties that Geo. T. Reid & Co. to hold and enjoy the said premises until default of payment shall be made."

The decree of the court below was as follows:

"This action is brought to foreclose two mortgages made by the defendant, a married woman,--the one to J. P. Phillips, assigned by him to Hipp, and by Hipp to the plaintiffs, and the other made to the plaintiffs. The defendant pleads that the first has been paid, and that it was not made with reference to her separate estate, and that it was collateral to a debt of her husband, and that the second was collateral to a debt of her husband, not relating to her separate estate, and does not show on its face any intention to bind her separate estate. The first mortgage was to secure a note for $321 to Phillips, the consideration of which does not appear, but was really for a horse sold by Phillips to defendant's husband, and for goods sold and to be sold by him to her and her husband jointly,--a partnership. At the date of said mortgage she had not the power to bind her separate estate for either debt, but she afterwards requested plaintiffs to purchase this note and mortgage, which seemed to bind her separate estate; and they did so, believing, so far as the testimony shows, that it did bind her separate estate, and she is now estopped from denying that it does. Wallace v. Carter, 32 S.C. 319, 11 S.E. Rep. 97. Plaintiffs are entitled to recover thereon the sum of one hundred and seventy-nine dollars and seventy-five cents, including interest to this date, (27th of August, 1892.) The second mortgage was made to plaintiffs 20th of May, 1889, and is authorized by Act 23d Dec. 1887, without reference to whose debt it is intended to secure. The limiting clause of that statute is, 'whenever the intention so to *** charge such separate estate is declared in such *** mortgage.' The mortgage under consideration, being in the usual full form of such an instrument, and in the absence of any prescribed statutory form, is held to contain such declaration, and is binding on defendant and her separate estate. The note which the mortgage purports to secure is for $400, bearing interest at 10 per cent. from 1st November, 1889, and amounted 1st August, 1892, to $510; but this note and mortgage are collateral to plaintiffs' store account, which he alleges to be the defendant's and she alleges to be her husband's, for 1888, 1889, and 1890. The balance due thereon, added to the balance due on the Phillips mortgage, is claimed by plaintiffs to be $464.40, and the master so reports. This is less than the collateral note and mortgage. Therefore the plaintiffs have a lien on the mortgaged land for the whole amount due thereon, whether the payments are applied to, and extinguish, the Phillips mortgage, or not; the only difference being some thirty dollars in interest. The following is a statement of the account:

To bal. due on Phillips' mortgage Dec. 7, '88 ............ $131 00 To int. at 10% on same to Aug. 27, '92, 2-8-20 ............. 48 75 To merchandise in '88, (bal. 1st Jan., '89,) ............... 85 00 To merchandise in '89 ..................................... 244 95 " " "'90 .................................................. 214 10 ------- Total .................................................. $723 80 Cr. By cotton in 1889 ............................... $177 30 " " " 1890 ....................................... 135 75 313 05 ------- ------- Balance due 27th Aug., 1892 ............................ $410 75

"It is therefore ordered and adjudged that defendant do. on or before the 1st day of November next pay to the plaintiffs or their attorney the said sum of four hundred and ten dollars and seventy-five cents, with interest from the filing of this judgment, and the costs of this action, and, upon her failure to do so, that she is barred of equity of redemption in said premises set out and described in the pleadings herein, and that said premises be sold by the master on sales day in December next, at auction, after the legal public notice, for one third cash, and the balance in one year, secured by the bond of the purchaser. and mortgage of the premises sold, said bond to bear interest from the day of sale. It is further provided that the purchaser may, if he choose, pay his whole bid in cash. Application may be made for such further orders as may be necessary to carry out this judgment."

Defendant's exceptions were as follows: "(1) Because there was error in deciding that the defendant requested the plaintiffs to purchase the note and mortgage described in the plaintiffs' first cause of action, and in further deciding that the plaintiffs purchased the same upon the representations or assurances of the defendant, and in holding that the defendant is now estopped; the testimony being overwhelming that the defendant knew nothing of the intention of the plaintiffs to take up said note and mortgage until said plaintiffs had completed their negotiations for the same. (2) Because of error in deciding that plaintiffs were entitled to recover, on the mortgage set out in the first cause of action, the sum of one hundred and seventy-nine dollars and seventy-five cents. including interest to the 27th August, 1892. (3) Because of error in not deciding that the note and mortgage were extinguished by reason of the fact that the same was a part of the consideration of the mortgage set out in the second cause of action, and was merged therein. (4) Because of error in not deciding that said note and mortgage had been extinguished by actual payment, the testimony showing that plaintiffs were positively instructed to apply the proceeds of cotton sold to plaintiffs in payment of same. (5) Because of error in deciding that the mortgage described in plaintiffs' second cause of action is 'in the usual full from of an instrument to bind the separate estate of a married woman without reference to whose debt it was intended to secure,' and in deciding that the same was binding on defendant and her separate estate; she being at the time a married woman. (6) Because of error in deciding that 'the plaintiffs have a lien on the mortgaged land for the whole amount due thereon, whether the payments are applied to, and extinguish, the Phillips mortgage, or not; the only difference being some thirty dollars and interest.' (7) Because of error in deciding that, before the defendant could be made liable on the mortgage described in the second cause of action, it was not necessary for said...