"This is an action for the foreclosure of two mortgages given by the defendant, Gil-more, to the plaintiff; the first to secure a bond for $6,000, dated August 19, 1886, and the second to secure a bond for $750, dated February 7, 1888. The two mortgages cover substantially the same property. The causes came on for hearing in this court at the June term, 1897, at Darlington, upon the pleadings and testimony taken by the master. The amount due on the mortgage indebtedness is the only issue involved. The defendant claims, in the first place, that interest has been Illegally charged against him, in that ten per cent. with annual rests, has been collected since as well as before the maturity of the respective bonds. It is only necessary to quote the language of the bonds themselves to show that this contention cannot be sustained. The first bond was payable in six installments, and, after fixing the time of the maturity of the several installments, it continues, 'With interest from the 15th day of August, 1886, on the whole amount, at the rate of ten per cent. per annum, payable annually, on the 15th day of December, 1886, and thereafter on each successive 15th day of December until the whole amount (both principal and interest) shall be paid.' The second bond is conditioned for the payment of the full and just sum of $750 on the 1st day of November, 1888, with interest thereon payable annually from the date of this bond, 'until fully paid, at the rate of ten per cent. per annum.' There is no room here for construction. The intention of the parties is clearly expressed.
"The second and main point of difference between the parties is as to certain pay
ments which the defendant claims to have made, and which the plaintiff denies, —in some instances as to any payments at all having been made, and in others as to the correctness of the amounts claimed to have been paid. We will examine this latter class first, namely, where the plaintiff admits that payments were made at the times claimed by the defendant, but denies that they were, respectively, as great In amount as he claims. It is necessary to premise that the plaintiff's business with reference to these bonds was managed by Gen. W. E. James, who had married her niece, and with whom she resided. He seems to have negotiated the loans, had the custody of the papers, and received the payments made on them, of which there are a large number undisputed by either party. It was his custom, when a payment was made, to credit it on the bond, and to give the defendant a loose receipt for the same. That he was careful to so enter the payment is shown by the large number of credits indorsed on the bonds. That he failed in at least one instance to credit a payment is frankly admitted by himself, on being confronted with a receipt for $375, in his handwriting, dated December 21, 1895. There are unimportant differences as to the exact dates of several credits, of which I take the dates indorsed on the bonds to be the true dates of payment. It appears that the payment of November 2, 1886, was made with proceeds of sale of a parcel of the mortgaged property The net proceeds of the sale are shown to be $127, and credit for the same had been duly given. The defendant claims a credit on December 3, 1887, of $425. The bond shows an indorsement on that date of a pay ment of $225, which is proven to be the proceeds of a parcel of the mortgaged land sold to one Posten. The evidence convinced me that the indorsement on the bond expresses the true amount of the payment. The defendant claims to have paid $401 on December 12, 1895, the receipt for which, as for the $425, is lost. The bond shows a credit on that day of $104. Gen. James testifies that the payment was $105. I take it that the sum credited on the bond is the correct amount of the payment. There are three other payments about which the parties are in hopeless contradiction. The defendant swears that he paid $1,200 on December 1, 1890, $1,500 on March 16, 1891. and $1,200 on October 15, 1892. He testifies that receipts for these payments were given to him by Gen. James, which he entered in a book kept by him, and in which he entered all his receipts as he got them; that he placed these, with some other receipts, in a trunk in his house; that on a night in 1893 his house was broken into, and this trunk stolen; and that he found it next day in a field near by, broken open, and the receipts and the reports torn to pieces, scattered around, and trampled in the mad, wherebythe receipts were lost. Other witnesses swear that they saw these particular receipts in Gilmore's possession, and one corroborates his account of their destruction. It does not appear that the defendant ever made known the loss of these receipts to the plaintiff or her agent, or that he asked for duplicates in place of those lost. These three large payments were not credited on the bonds, although numerous other payments intervening between them, and subsequent to the last of them, are duly credited. Gen. James denies positively that they were ever made. The defendant testifies that in May, 1893, he made a list in his book of all his receipts. This list is not in evidence, although the witness was allowed to refresh his memory from it; and he called off from it a number of payments, the receipts for which he declared were lost, including all these about whose existence there is any dispute. A list of all the payments is given in the answer, and it appears that the answer is made from the books of Gilmore. This list shows the alleged payment of December, 1890, in its proper chronological place, between the payments of 1889 and those of 1891; the payment of $1,200 in October, 1892, appears (out of its chronological order) after those of November and December of the same year; while that of $1,500, in March, 1891, appears (low down on the list) amongst those of the year 1895. These irregularities attracted my attention after I had reached my conclusion in this case. They tend to raise a question whether this list which Gilmore claims to have made in May, 1893, could have been made earlier than the year 1895, and whether, indeed, it may not have been made even later, when he began to fear that he might need it for the purposes of this defense. The list may not be correctly copied from the book, however, and little or no importance can be attached to the point.
"The sources from which the defendant derived the means to make payment on this debt appear to have been the products of his farm, which the testimony shows were comparatively small; the income from a sawmill, which was not run regularly; and certain money arising from the sale of small portions of the mortgaged property, and from fire insurance policies on certain buildings which were burned. These last-mentioned moneys are duly accounted for, and, for the most part, were applied to the debt. It appears that he was cramped for means to run his farm, and that for years he had to give liens on his crops and mortgage his land to procure the necessary advances for this purpose. He claims to have paid $1,-200 in December, 1890, and $1,500 in March, 1891, making $2,700 in one season, besides other payments not disputed, while In March, 1891, he was compelled to give a crop Hen, and a third mortgage of his land for $1,200, in order to procure supplies for that
year. He continued this arrangement from year to year for three or four years with the same party, falling short of paying out each year. During all that time the defendant was much pressed to meet the accruing interest on Mrs. Sweet's debt, although he claims to have made a payment in that time of $1,200, in October, 1892. When a party seeks to establish by secondary evidence a fact in direct contradiction of the proof offered by the opposite side, he ought to strengthen such evidence by proving every circumstance known to him, and relevant to the transaction. It would have been a very strong supporting circumstance, easily within his power to prove, had Mr. Gilmore shown where, in his apparently embarrassed condition, he got the money to pay in less than two years nearly $4,000 on his indebtedness, in addition to the payments admitted to have been made. Gen. James testifies that early in 1893, at the defendant's request, he produced the bonds, for the purpose of ascertaining whether all the payments had been credited; that together they went over the receipts carefully, comparing them with the credits on the two bonds; that the receipts and...
