47 S.C. 344 | S.C. | 1896
Lead Opinion
The opinion of the Court was delivered by
This action for the foreclosure of a mortgage executed by John J. Nelson, deceased, in his lifetime, in favor of the plaintiff above named, against the defendants, as heirs at law and distributees of the estate of the said John J. Nelson, deceased, was commenced in 1894. Defendants alleged in their answer that the debt intended to be secured by the mortgage had been fully paid, and, therefore, the mortgage was invalid as a subsisting lien. By consent of all the parties, the issues of law and fact were referred to T. J. Kirkland, Esq., as special referee. To his report defendants excepted. These exceptions came on to be heard before his Honor, Judge Townsend, who sustained a few of such exceptions. From his decree plaintiff alone appeals on two grounds:
1. Because his Honor erred in overruling the finding of facts by the referee, that the liens of Elijah Brooks and A. A. Simons had not been paid; and concluding, “that as Baum Brothers had the liens and failed to collect them, it was their fault;” whereas his Honor, it is respectfully submitted, should have held that the weight of the testimony sustained the findings of the referee that said liens had not been paid. 2. Was abandoned. 3. Because his Honor erred in holding that there was no contest over the fourth exception of defendants to the report of the referee, to wit: “That the referee errs in not charging the plaintiff and crediting the defendants with the value of the mortgage of A. J. A. Williams and Ben Murphy, assigned to Baum Brothers as collateral for this same account;” whereas, it is respectfully submitted, there was a contest between plaintiffs’ and defendants’ attorneys before his Honor as to this exception, and plaintiff denies the legal position taken by defendants as to crediting the account of defendants with the value of the mortgages of Williams and Murphy, and
It is the judgment of this Court, that the Circuit Court judgment be affirmed, and that the cause be remanded to that Court, to have the two liens of Elijah Brooks and A. A. Simons for the year 1894, credited as a part payment of plaintiff’s debt herein.
Dissenting Opinion
dissenting. I dissent. The weight of the testimony supports the finding of the referee, that the liens of Elijah Brooks and A. A. Simons (Nos. 3, 4) have not been paid. The first exception should be sustained.