Woods v. Bryan

• Decision Date: 14 March 1894
• Citation: 19 S.E. 218,41 S.C. 74
• Parties: WOODS v. BRYAN et ux.
• Court: South Carolina Supreme Court

19 S.E. 218

41 S.C. 74

WOODS v. BRYAN et ux.

Supreme Court of South Carolina

March 14, 1894

Appeal from common pleas circuit court of Marion county; Ernest Gary, Judge.

Action by Charles A. Woods against Marvin Q. Bryan and Elizabeth S Bryan, his wife, to foreclose a mortgage. Judgment for plaintiff. Defendant Elizabeth S. Bryan appeals. Affirmed.

Ferd D Bryant, for appellant.

W. J Montgomery, for respondent.

McGOWAN J.

On January 10, 1885, M. Q. Bryan purchased a plantation in Marion county, known as the "J. Moody Place," from Anna L. Graham. Part of the purchase money ($200) was secured by the note of the said Bryan and a mortgage of his "Arial Place." As soon as the papers were prepared in the presence of Bryan, the note and mortgage were transferred, for valuable consideration, to the plaintiff, C A. Woods. When the note became due, Bryan paid the interest up to December, 1886, and was granted indulgence to that time by the assignee, the plaintiff. There was no serious proof against the consideration or bona fides of the debt and mortgage; but the defense was set up by Mrs. Elizabeth S. Bryan, wife of the mortgagor, M. Q. Bryan, who, for the reason hereafter stated, was made a party defendant. The facts are a little complicated, and, in order to make clear the points raised by her, it will not be out of place to make a short statement, with special reference to the numerous dates of the different transactions.

On March 10, 1876, the person who afterwards executed the note and mortgage in question, viz. M. Q. Bryan, confessed a judgment before the clerk of the court, for several hundred dollars, to one Francis W. Kerchner, under section 384 of the Code, upon the following statement: "This confession of judgment is for money justly due to the plaintiff [F. W Kerchner], arising upon the following facts: Balance on my note for five hundred and fifty-three and 6-100 dollars, dated January 26, 1874, with credit thereon same day of $225.00, and $2.00 sheriff's costs, and $15.00 plaintiff's costs, incurred in suit on said claim, amounting in all to three hundred ninety-three and 79-100 dollars. [Signed] M. Q. Bryan, Defendant." On November 16, 1880, the execution on this confessed judgment was renewed by order of court, and in May, 1893, the debt and interest apparently due on this judgment of F. W. Kerchner v. M. Q. Bryan was assigned to Mrs. E. S. Bryan without recourse, and also stated clerk's and sheriff's costs (amounting to $12.30). On January 18, 1885, the said M. Q. Bryan, as before stated, executed the mortgage in question, which soon after was assigned for valuable consideration to the plaintiff, C. A. Woods. On January 17, 1887, Mrs. Bryan, as assignee of the judgment confessed to Kerchner, had it revived, by order of the court, and under the judgment thus revived she had the mortgaged tract of land levied and sold by the sheriff, at whose sale she became herself the purchaser for $50, and received sheriff's title for the same; and very soon thereafter the plaintiff, Woods, instituted this proceeding to foreclose his mortgage against the mortgagor, M. Q. Bryan, making his wife, Elizabeth S. Bryan, also a party defendant. The complaint sought to have the deed to Mrs. Bryan declared void, both upon the ground of actual fraud in the assignment of the Kerchner judgment to her, and also upon the ground that the confession of that judgment, assigned to her, and under which she bid off the land at sheriff's sale, was null and void, the consideration--the facts "out of which the alleged indebtedness arose"--not being stated as required by law. The defendants both answered, denying all the allegations of fraud, and insisting that the confession of judgment to Kerchner was in all respects legal and valid, and he had an older and superior lien upon the tract of land than that of the mortgage of the plaintiff; and, besides, interposed a demurrer as follows: (1) "That, if the facts stated in the amended complaint be admitted as a whole, they do not constitute a cause of action. (2) The validity of a judgment cannot be attacked collaterally, but, under the practice in this state, should be on motion to vacate; and this, being a separate cause of action, is improperly united with the plaintiff's cause of action to foreclose a mortgage. (3) The fact of revival of the said judgment, and the renewal of execution thereto, being stated in the amended complaint, the plaintiff is estopped from again bringing its validity in question. It is res adjudicata. (4) That the dates given by plaintiff in the second paragraph of the said amendment as to the original entry of the said judgment and the subsequent revival thereof plainly state himself out of court on that position," etc. The cause came on to be heard by his honor, Judge Gary, who held that the judgment confessed by M. Q. Bryan to Kerchner "before the clerk" was not in compliance with law, and also that neither the renewal of the execution nor revival of the judgment, simply between the parties, could have the effect of giving vitality to a judgment which was absolutely void, certainly not as to all persons who were neither parties nor privies; and that the plaintiff was neither a party or privy in the Kerchner so-called "judgment;" and therefore he decreed foreclosure. From this decree Mrs. Elizabeth S. Bryan appeals to this court, upon the following grounds, alleging error: "First. In holding the 'statement' in the judgment of Kerchner v. Bryan 'insufficient,' the statement containing certain items of costs incurred by the plaintiff therein in suit on said claim prior to the confession of judgment, in addition to the amount of the note, stated therein; and the statement in the confession of judgment ought to have been held good to the amount of such items, if not for the whole. Second. In not holding that, if the statement in the original confession of judgment was insufficient, the subsequent renewal by order of court on November 16, 1880, after summons duly served and default, and, again, the revival of judgment and renewal of execution in same manner on June 17, 1887, cured any defects in the original judgment, and estopped the judgment debtor, or other person claiming under him, from again bringing its validity into question. Third. In overruling the defendants' demurrer that the judgment could not be attacked in this collateral manner, but should be by motion to vacate, which, being a separate cause of action, could not be united...