Zeigler v. Maner

• Decision Date: 03 August 1898
• Citation: 30 S.E. 829,53 S.C. 115
• Parties: ZEIGLER. v. MANER et al.
• Court: South Carolina Supreme Court

30 S.E. 829

53 S.C. 115

ZEIGLER.

v.MANER et al.

Supreme Court of South Carolina.

Aug. 3, 1898.

Usury—Right to Plead—Counterclaim—Mortgages—Judgments—Res Judicata.

1. The right to plead usury is a privilege personal to the debtor.

2. The purchaser of property covered by a mortgage tainted with usury may set up in a counterclaim in a suit for foreclosure the amounts of usurious interest paid to the mortgagee by himself.

3. A suit in foreclosure was commenced against the mortgagor, and proceeded to judgment. It was then discovered that before suit the mortgagor had sold the premises, and the purchasers were then added as parties defendant. Held, that such judgment was not conclusive of the amount due on the mortgage, so as to prevent consideration of a counterclaim for usurious interest paid by such purchasers.

Appeal from common pleas circuit court of Barnwell county; W. C. Benet, Judge.

Action by Paul J. Zeigler against Anna B. Maner for foreclosure of a mortgage executed by defendant to the Bank of Allendale, and assigned to plaintiff. Judgment for plaintiff. After judgment, Mary A. Sams, V. M. Maner, and H. K. Maner, grantees of Anna B. Maner, were added as parties defendant. From a judgment for plaintiff, Mary A. Sams, V. M. Maner, and H. K. Maner appeal. Modified.

I. L. Tobin, for appellants.

Patterson & Holman, for respondent.

GARY, A. J. The plaintiff brought this action to foreclose a mortgage of real estate. On the 31st of December, 1890, the defendant Anna B. Maner executed a mortgage in favor of the Bank of Allendale on the land described in the complaint. Anna B. Maner conveyed said land to the other defendants on the 16th of January, 1892. On the 29th of April, 1893, the Bank of Allendale, for valuable consideration, released a part of said land from the lien of the mortgage. The Bank of Allendale, for value, assigned said mortgage to the plaintiff on the 15th of June, 1895. On the 17th of June, 1895, the plaintiff commenced an action against Anna B. Maner to foreclose said mortgage; and on the 20th of August, 1895, a judgment of foreclosure was rendered against the defendant Anna B. Maner for the sale of the said land. The plaintiff then discovered that Anna B. Maner had previously conveyed the said land, and he was allowed to amend his summons and complaint by making the grantees of Anna B. Maner parties defendant. The defendant Anna B. Maner did not file an answer, but her co-defendants answered, setting up as a defense that the amount mentioned in the said mortgage included usurious interest. They also set up a counterclaim arising out of the alleged fact that they had made various payments of usurious interest to the Bank of Allendale while it was the owner of said mortgage. The plaintiff replied to the counterclaim denying that the payments were made as stated in the answer, and also set upas a defense that the matters Involved herein, by reason of the judgment of foreclosure recovered against Anna B. Maner, are res ad-judicata. His honor, Judge Benet, overruled the defense and the counterclaim for usury interposed by the appellants, and sustained the defense of res adjudicata set up in plaintiff's reply to the counterclaim, and granted judgment of foreclosure. The three defendants who answered the complaint have appealed upon exceptions which raise the following questions, to wit: (1) Was there error on the part of the circuit judge in deciding that the appellants did not have the right to set up as a defense that the...