Thatcher & Co. v. Massey

• Decision Date: 11 March 1884
• Citation: 20 S.C. 542
• Court: South Carolina Supreme Court
• Parties: THATCHER & CO. v. MASSEY.

20 S.C. 542

THATCHER & CO.

v.MASSEY.

Supreme Court of South Carolina.

Mar. 11th, 1884.

1. Exceptions to an intermediate decree should be taken at the time; still, if not taken until final decree rendered, they will be considered.

2. A note for advances payable at a future day, secured by an agricultural lien, which provides for interest on the advances at the rate of two and one-half per cent. a month from the date of each, after maturity draws legal interest only.

3. A mortgage of land and agricultural lien were taken to secure advances to the extent of $2,000, but advances thereunder were made to a larger amount, and the cotton crop covered by this agricultural lien was shipped to the creditor without direction as to its application. Held, that the proceeds of the cotton was applicable to the $2,000 indebtedness, and the creditor could not apply it to the unsecured excess.

4. But other payments made by the debtor without directions, the creditor could apply to any demands he then held against the debtor, and this right the creditor could exercise at any time before verdict or judgment.

5. Concurrent finding of fact by referee and Circuit judge, approved.

Before PRESSLEY, J., and HUDSON, J., Lancaster, October, 1881, and June, 1883.

This case is fully stated in the opinion.

Messrs. R. E. & R. B. Allison, for appellants.

Mr. Ernest Moore, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

J. Y. Bryce & Co. agreed to advance to the defendant, Massey (respondent), for the year 1870, to the extent of $2,000, and on the second day of May of that year a very considerable portion of this amount having been advanced, to wit, $1,455.40, Massey executed and delivered to the said Bryce & Co. an instrument under seal, in which he promised to pay them or order, on or before November 1st, next, the said sum; and on the same day he executed a mortgage of certain real estate situate in Lancaster county, and also an agricultural lien on the crops of that year, to secure the payment of the said sum of $2,000, agreed to be advanced, in which was included the $1,455.40, already advanced as stated above. It was stipulated in this agricultural lien, that Massey should pay two and one-half per cent. per month on the advances from the date of each. Shortly after the execution of the above-mentioned note for $1,455.40 and the mortgage and agricultural lien, Bryce & Co. assigned and transferred the same to the plaintiffs, Thatcher & Co., but of this transfer the respondent, Massey, had no knowledge until this suit was brought in November, 1873.

During the year 1870, Bryce & Co. advanced to Massey, in money and supplies, including the $1,455.40, to the amount of $2,532.68, besides the interest thereon, which was in excess of the $2,000 agreed to be advanced, by the sum of $532.68. Bryce & Co. continued to advance in the year 1871, and also to a small amount in 1873, and they had also advanced in 1869, at the end of which year Massey had to his credit the sum of $37.92. The cotton crop of 1870, amounting to thirty-four bales, was received by Bryce & Co., to wit, three bales in December, 1870, and thirty-one bales in the Spring of 1871, at different times from January to May, the net proceeds amounting to some $2,005.91; and in 1872 Massey delivered four bales of the crop of 1871, the net proceeds of which amounted to $357.47. In the spring of 1871, Bryce & Co. received from Massey four mules, alleged by Massey as a sale to Bryce & Co. at $200 each. One of these mules was afterwards returned to Massey, leaving the other three in the hands of Bryce & Co. at $600. There were other credits claimed by Massey, but it is unnecessary to notice them here under these circumstances.

The plaintiffs, Thatcher & Co., to whom, as stated above, the $1,455.40 note with the mortgage and agricultural lien had been assigned, brought this action on said note and for foreclosure of the mortgage. The defendant answered, pleading payment of all advances secured by said mortgage and agricultural lien, by credits of his cotton crop of 1870, by the balance to his credit at the end of the year 1869, to wit, $37.90, and by $600, the price of three mules sold to Bryce & Co., and he denied that a valid assignment had been made to the plaintiffs of the note and mortgage, &c. In 1875 the case was referred to a referee, whose report was heard by Judge Pressley in 1881, upon exceptions from both sides. In this report the referee took into the account the entire transactions between J. Y. Bryce & Co. and the defendant, Massey, from 1869 to 1873, and after crediting upon the indebtedness of Massey the proceeds of the cotton received by J. Y. Bryce & Co. during that time, the mules at $600, the balance due Massey from the transaction of 1869, $37.90, overcharge on bacon, damaged bacon, and amount paid by B. R. Smith & Co., $207.25, &c., found as matter of fact that the sum of $561.35 was due by the said Massey on September 16th, 1881, which, by virtue of the assignment to the plaintiffs of the note and mortgage, belonged to the plaintiffs.

To this report the plaintiffs excepted, alleging error: First. Because the referee had charged two and one-half per cent. per month interest on the cash advances only, whereas the terms of the agricultural lien stipulated for that per cent. upon all advances, whether of cash or supplies. Second. Because the referee gave Massey credit for $600, the price of the mules, when said mules were only placed in the hands of Bryce & Co. for sale, who sold them for $390 only. Third. Because the referee charged interest on the $1,455.40 at two and one-half per cent. per month only to January 1st, 1871, when this per cent. should have been charged until the note was paid, and also, the same error as to the items of advance, other than the note-with some other exceptions not material. The defendant also excepted upon various grounds, not necessary to be mentioned now, and gave notice that he would move the court for a recommittal of the report.

On hearing the report and exceptions, Judge Pressley adjudged that the interest on the sealed note should be computed after maturity at seven per cent. per annum; that the interest on all the other advances made under the lien should be computed from the date of each at two and one-half per cent. a month up to January 1st, 1871; that the proceeds of the crop of 1870 should be applied first to the indebtedness of Massey for advances made by Bryce & Co. to him in that year, represented by the note and account which was secured by the mortgage, and that the same should be applied as of the date or dates when said cotton was sold. That all other payments should be applied in accordance with the directions of the defendant, Massey, at the time the same were made, and that if no direction was given the same should be applied to any indebtedness then due, if so directed or done by J. Y. Bryce & Co. before suit brought, and that in the absence of any such application by either party, the same should be applied to any indebtedness then due not secured by mortgage. And after overruling all other exceptions not embraced in this ruling, he ordered the report to be recommitted to the master to state the accounts on the indebtedness of the year 1870 by note and account, according to the principles stated, and that either party have leave to introduce...