44 S.C. 430 | S.C. | 1895
The opinion of the court was delivered by
This action was commenced on the 20th January, 1888, by the plaintiff to foreclose a mort
The answer of the appellant, Sarah Drafts, admits the execution of both of the mortgages above referred to, but she denies the assignment of the first mentioned mortgage to the plaintiff, and alleges that nothing is due thereon; and as to the mortgage to the defendant, Polly C. Meetze, she sets up as defence thereto that said mortgage was without consideration, was given to defeat, delay, and hinder her creditors, and that the same was obtained from her by the said Polly C. Meetze and her husband, Walter S. Meetze, by the exercise of duress, imposition, aud undue influence. Polly O. Meetze answered, joining in plaintiff’s prayer for foreclosure, and utterly denying all charges made by appellant against her mortgage. Wm. J. Assmann
After the pleadings were made up, the defendant, Sarah Drafts, applied to his honor, Judge Hudson, for an order, framing certain issues of fact to be tried by a jury. This order was refused, and an order was granted by Judge Hudson referring all the issues, both of law and fact, to Robert W. Shand, Esq., for trial. From that order the said Sarah Drafts appealed, and while the case was pending in the Supreme Court, an order was granted by that court, with the consent of all parties, substituting J. Brooks Wingard, Esq., in place of R. W. Shand, “to hear and determine the issues in said action,” and affirming the order appealed from in all other respects. This order, as set out in the “Case,” is without date, but it is said to have been passed on the 11th of January, 1889. At all events, it appears from the “Case” that the first reference, before Mr. Wingard, was commenced on the 20th of August, 1889. Many references were subsequently held, and an immense mass of testimony was taken, and on the 26th da5r of July, 1894, the referee submitted his report (a copy of which should be incorporated in the report of this case),
To this report the defendants, Polly O. Meetze and Wm. J. Assmann, as well as the Carolina National Bank, filed exceptions, and the case came on for hearing, upon the report and exceptions, before his hon.or, Judge Benet, who rendered his decree (a copy of which should be embraced in the report of this case) overruling the report of the referee, sustaining the notes and mortgage to Polly C. Meetze, and directing that after the payment of the costs and expenses of this action, and the amount due on the mortgage held by the plaintiff, the balance of the proceeds of the sale of the mortgaged premises be applied: first, to the payment of the claim of Wm. J. Assmann; second, to the claim of the Carolina National Bank; third, to the notes and mortgage of Sarah Drafts to Polly O. Meetze; and that any balance that may then remain be held subject to the further order of the court. From this decree the defendant, Sarah Drafts, has given notice of appeal upon the several exceptions set forth in the record, which need not be repeated here, as in our view of the case it turns upon a single question of fact, which will be presently stated.
It seems, however, that when the referee made his report, the plaintiff applied to his honor, Judge Fraser, for a decree of foreclosure, which was granted on the 27th day of February, 1894, and the mortgaged premises ordered to lie sold on the first Monday in November, 1894; but by an agreement of all parties the sale was postponed until the first Monday in December, 1894, though, in fact, the property was not offered for sale
But what was the nature of the duress claimed to have been exercised towards appellant and her main witnesses, over this long period of years? There is not the slightest evidence that either Walter S. Meetze or his wife ever offered or attempted any act of violence towards Mrs. Drafts, oranyofber witnesses. Nothing but mere words, and they, too, of a most dubious character. Again, there is no evidence that either Polly O. Meetze or her husband, during the long period since 1881, when the mortgage was executed, ever indicated either by word or deed, any intention or even desire to enforce the mortgage against Mrs. Drafts, until the commencement of the present action, when Polly C. Meetze was made a party defendant, and was thus compelled to set up her mortgage, or abandon her claim altogether; and, as one of the counsel for respondents very pertinently says, but for the institution of the present action, for all that appears, Polly O. Meetze would never to this day have pressed her mortgage against her mother. On the contrary, as the testimony shows, whenever there was any danger of her mother being disturbed in the possession of the mortgaged premises, not only Polly C. Meetze but her husband also, always displayed not only a willingness but an anxiety that Mrs. Drafts should be secured in the possession of ahorne.
There is another important and pregnant circumstance in this case to which due attention has not been given, and that is, that the appellant has wholly failed to give, or even suggest, any reason whatever why the terrorism which she claims con-
While the appellant has failed to suggest any answer to this very natural inquiry, we think it may, possibly, be found in a circumstance to which we will advert. It appears from the testimony in the case, that the day before appellant’s answer was filed in this case, there was a secret conclave held in the office of appellant’s counsel, at which it was arranged that Mrs. Drafts should confess a judgment for a large amount to Fort, on a debt that she has always denied owing, and that the mortgaged premises should be sold under this judgment and bid off by Fort, who was then to divide the same between the lawyers, Fort, and Mrs. Speights — the same person who was so ready to leave the safety of her home in the city of Augusta and come
The judgment of this court is, that the judgment of Judge Fraser, as well as that of Judge Benet, be affirmed, and that the ease be remanded to the Circuit Court for such further proceedings as may be deemed necessary.
Tlie Reporter was not furnished with a copy of .the “Case.” It was typewritten, and the number required by the rules were not filed. ’