25 S.C. 149 | S.C. | 1886
The opinion of the court was delivered by
This action was originally commenced sometime in the year 1880, for the purpose of settling up the estate of W. B. Huckabee, according to the terms of his will. On February 10, 1879, the respondent, John M. Mickle, recovered a judgment by default against A. A. Huckabee, as administrator of the estate of W. B. Huckabee, on a note of which the following is a copy:
“$500.00. CamdeN, January 10, 1874.
“Twelve months after date we, or either of us, promise to pay to J. T. Mickle, or bearer, five hundred dollars, with interest at the rate of one and one-half per cent, per month, for value received. Witness our hands and seals.
“J. J. HUCKABEE, [l. s.]
“W. B. HUCKABEE, [l. s.]”
On February 5, 1882, the judgment creditor, John M. Mickle, had a house and lot in the town of Camden sold under his said judgment, and the proceeds of sale not being sufficient to satisfy the same, he subsequently caused the sheriff to levy upon another piece of 'real estate belonging to the testator, to satisfy the balance due on his judgment. Thereupon the parties interested under the will of W. B. Huekabee filed a supplemental complaint, alleging these facts, and the further fact that the judgment w'as taken for a much larger amount that was really due on the note, inasmuch as, in ascertaining the amount, interest was calculated, after the maturity of the note at the rate of 18 per cent, per annum, to the date of the judgment, instead of at 7 per cent., as it should have been, and asking that the judgment be reformed accordingly, and in the meantime the judgment creditor, John M. Mickle, who was made a party defendant to the supplemental complaint, be enjoined from enforcing the judgment. In addition to this a notice, bearing date July 12, 1884, signed by the attorney for the plaintiffs in the action, and by the attorney for A. A. Huekabee, as executor of W. B. Huekabee, addressed to the judgment creditor, John M. Mickle, seems to have been served, to the effect, “that on the hearing of this case a motion will be made, upon the part and behalf of the defendant, A. A. Huekabee, executor of the last will and testament of W. B. Huekabee, deceased, and the heirs of his estate, to modify and reduce” the judgment hereinbefore referred to by correcting the alleged erroneous computation of interest. To this supplemental
All the issues of law and fact were referred to the master for trial, who made his report setting out the facts in detail, and finding as his conclusions of law: 1st. That the lands of a testator can be sold under a judgment against the executor. 2nd. That the legatees had no right to be made parties to the action in which the Mickle judgment was recovered, the executor being the only proper party. 3rd. That A. A. Huekabee, the representative of the estate of Willis B. Huekabee, is bound by the said judgment, and cannot now in this action have the same reformed or reduced. 4th. That A. A. Huekabee, the executor, being bound, the legatees named in the third item of the will of the testator, being his privies in estate and represented through him, are also bound. 5th. That the said judgment, as the judgment of a competent court having jurisdiction of the subject matter, is absolutely conclusive againt all the parties and must stand as rendered. 6th. That the interest did not commence to run on said note until after its maturity, and then according to its terms at the rate of one and a half per cent, per month.”
To this report the attorney for the plaintiffs and the attorney-for the executor, A. A. Huekabee, excepted as follows: “They except to the master’s 3rd, 4th, 5th, and 6th conclusions of law as being erroneous, and so far as the third conclusion of law is concerned, because no point was made before the master as to the way in which these questions are brought up.” Upon this report and these exceptions the case came on for hearing before Judge Witherspoon, -who held, in substance, that the Mickle judgment was conclusive and cannot be assailed by the plaintiffs in this action. He then went on to say: “I cannot, however, concur with the master in his conclusions as to the interest on the note, as I think the note drew interest at the rate of one and one-half per cent, per month, from date up to maturity, and only the legal rate of interest after maturity. It is ordered and adjudged that the report of the master in the above case, filed December 31, 1884, be confirmed and become the judgment of this court.
From this judgment plaintiffs appeal upon the ground that the Circuit Judge having determined that the interest on the note was erroneously calculated, should have directed the same to be corrected, and that he erred in holding that the judgment was conclusive in the sense that it could not be so corrected. The judgment creditor also appeals, upon the ground that the judge erred in holding that the interest was erroneously calculated upon the note, and upon the further ground that the judgment is conclusive as to the heirs and distributees of W. B. Huckabee and cannot be reviewed or reformed under these proceedings. The executor, A. A. Huckabee, does not appear to have appealed.
We will first consider the appeal of the judgment creditor, Mickle. We think it clear that his first ground cannot be sustained. The question in all such cases is, what was the intention of the parties, as gathered from the terms used in the written contract sued upon ? We look, in vain, into the terms of this note for any word indicating an intention that the makers undertook to pay anything more than the legal rate of interest after the maturity of the note. It is nothing more than a promise to pay a certain sum of money, with a specified rate of interest, at a future specified time, without a single word indicating what shall be the rate of interest, or whether, indeed, there shall be any, after that time arrives. It is in effect a promise to pay five hundred and ninety dollars twelve months after the date, and the liability to pay any interest after that date only arises by operation of law, and not by virtue of express contract, by which alone can a rate greater than the usual legal rate be claimed.
The other grounds presented by this appellant are taken under a misconception of the true intent and effect of the Circuit decree, or perhaps out of abundance of caution; for we think that the judgment appealed from really establishes the very positions contended for in the second and third grounds of appeal presented
What was said in the Circuit Judge’s decree as to the sixth conclusion of law reached by the master, was, no doubt, for the purpose of negativing the idea that the Circuit Judge concurred with the master as to the construction which he placed upon the terms of the note, aftd not for the purpose of affecting his general conclusion as to the issues involved. The question presented for adjudication was whether the judgment could be reformed in this proceeding. This involved two inquiries: 1st. Whether there was error in the judgment; and, 2nd, if so, whether such error could now be corrected. The master determined the general question adversely to the plaintiffs for two reasons : 1st, because the judgment was conclusive and could not be inquired into, and, 2nd, because if inquired into, no error would be found. The Circuit Judge, while affirming the general conclusion of the master, for the first reason given by him, simply denied the sufficiency of the second reason relied on by that officer.
We come now to consider the appeal on the part of the plaintiffs, whom we regard as legatees of the judgment debtor, W. B. Huckabee. By the third clause of the will the executor is directed to “sell all my estate, real and personal, not hereinbe-fore disposed of, at his own option, in such manner as he shall think best, at private or public sale, and the net proceeds thereof
Whether the executor himself might not by a proper proceeding for that purpose under the authority of the cases of Mooney v. Welsh, 1 Mill. Con. R., 133; Bank v. Condy, 1 Hill, 209; Patton v. Massey, 2 Hill, 475; Ashmore v. Charles, 14 Rich., 63, and other cases of that class, have any errors of the kind complained of rectified, is a question not presented by this appeal, and cannot, therefore, now be considered. It is true, that the executor did unite with the plaintiffs in giving notice of a motion to have the judgment reformed by a proper calculation of the interest, but this does not seem to have been followed up by any application by the executor for an order to that effect. On the contrary, no further notice seems to have been taken of it. There is nothing said in the report of the master in reference to it, and no exception to his report bringing this question to the attention of the Circuit Judge. Accordingly we do not find it alluded to in his decree, and there is no appeal from his decree by the executor. Under these circumstances we are not at liberty to consider it.
The judgment of this courtis, that the judgment of the Circuit Court, as herein construed, be affirmed.