Smith v. Smith

• Decision Date: 12 July 1887
• Citation: 3 S.E. 78,27 S.C. 166
• Parties: Smith, Adm'r, v. Smith and others.
• Court: South Carolina Supreme Court

3 S.E. 78

27 S.C. 166

Smith, Adm'r,

v.Smith and others.

Supreme Court of South Carolina.

July 12, 1887.

Mortgage—Validity—Invalidity of Note—Alteration.

A mortgage on real estate, given to secure a debt, the amount and terms of which sufficiently appear therein, is valid, and may be enforced against the estate of the maker, although the note representing the same debt is declared void, because of a material alteration made therein by the payee after the death of the maker.

McGowan, J. Baylis L. Smith, as the administrator of the estate of William C. Yeargin. deceased, instituted the action for the purpose of having lands of the intestate sold in aid of the personalty in paying debts, and for partition. The heirs at law of the intestate were made parties, and also one Alexander Spillors, who held a mortgage of the lands of the intestate. An order was passed calling in the creditors to present and prove their demands before the master, S. J. Douthit, Esq. Among the creditors who presented demands was the said Alexander Spillors, who presented and proved a note as follows:

"$300. One day after date I promise to pay A. Spillors or order three hundred dollars for value received. This twenty-third day of December, 1882. [Signed] W. C. Yeabgin. [l. s.]"

Indorsed:

"October 27, 1883. Received interest in full on the within to December 23, 1883.

"Decembee 1, 1884. Received interest in full on the within to December 23, 1884."

He also proved a mortgage of 140 acres of land executed to him by the said intestate, Yeargin, to secure the same debt. It was admitted that the words "with ten per cent, per annum" were put in the note by the directions of Mr. Spillors after the death of the intestate, without the knowledge or consent of the plaintiff, (his administrator,) and were erased after the suit was commenced, or crossed out by said Spillors. The defendant (Spillors) offered to prove by parol testimony that the agreement between him and theintestate, at the time and before the execution of the note, was that the intestate was to pay interest at the rate of 10 per cent, per annum; and that it was simply an omission on the part of the party who drew the note that it was not drawn in that way; and that neither discovered that it was not so drawn until the first interest was paid thereon. The testimony was excluded on the ground that parol testimony cannot be introduced to alter or vary the written instrument. The master therefore held that the words as to the interest added to the note by the direction of Spillors rendered it void. His report then proceeds:

"The next question, then, to be considered is, the note being void, can the mortgage be established as a valid and subsisting claim independent of the note? Both parties cite and rely upon the same authorities. Plyler v. Elliott, 19 S. C. 257; the plaintiff contending that the difference in this case from that is that the mortgage there does not refer expressly to the note, while here it does, and therefore the mortgage cannot be separated from the note so as to stand as a valid claim of itself, as it would be impossible to establish the mortgage without referring to the note. After a careful examination of the case referred to, the master is unable to distinguish any material difference between it and the one under consideration, for it seems to him that the doctrine there intended to be enunciated is that both the bond and mortgage are evidences and securities for the same debt, and, although one maybe rendered void, it does not take away the right to enforce the other. The mortgage in question certainly furnishes enough evidence, independent of the note,...