Bethune v. McDonald

35 S.C. 88 | S.C. | 1892

The opinion of the court was delivered by

Mr. Justice McGowan.

The late William M. Shannon purchased at sheriff's sale, many years ago, a tract of land, the property of one Alexander McDonald, said to contain 330 acres and described in the complaint. He took sheriff’s title for the same, and as it seems, allowed McDonald and his family to remain upon the land. About the year 1866, Alexander McDonald died, leaving a widow, Mary A., and a son, .Daniel A., surviving him. On October 31, 1872, Shannon sold the land to the son, Daniel A. McDonald, and took from him a bond for $600, payable in instalments, bearing interest, and a mortgage of the premises, to secure the purchase money, which was regularly recorded. In February, 1872, Shannon transferred the bond and mortgage to one D. M. Bethune, and he, on April 27, 1891, assigned them to Thomas B. E. Bethune, “deacon of Pine Tree Presbyterian Church,” the plaintiff, who instituted this proceeding to foreclose the mortgage for the balance due thereon,' after deducting several small credits. The debtor mortgagor, Daniel A. McDonald, made no defence, but allowed judgment to be taken against him by default.

But one Andrew J. Melton was found in’possession of the land, and being made a party defendant, answered, claiming to be the fee simple owner of the land, not subject to the lien of the Shannon mortgage. He alleged that the land had been divided into two ‘parcels, of about 150 acres each, and that he had become the owner of both parcels at different times and in different ways, somehow as follows: First. That on December 8, 1881, he purchased one of the parcels from Mrs. Mary A. McDonald and her son, Daniel. A. McDonald, the interest in the land of Mrs. McDonald being, as alleged, her claim of dower, as the widow of Alexander McDonald, who was the owner of the land when it was purchased by Shannon at the sheriff’s sale. The defendant claimed that Mrs. McDonald’s alleged dower interest conveyed to him, was not subject to the mortgage, and he was entitled to have it laid off to himself. Second. That afterwards, on December 31, 1884, he purchased from the same parties the other parcel of the land; but as to that, the plaintiff should be estopped from foreclosing the mortgage upon the ground that D. M. Bethune, while he held the mortage as first assignee, induced him to make the purchase, by making to him the following declaration : “Go ahead and buy it. The $100 you have already paid me on the other piece of land and that land will secure my debt,” &e.

The testimony was taken and reported by the master, and is printed in the “Brief.” It appeared that the deeds of both parcels of the land were executed by Daniel A. McDonald alone, and on each of them appeared a “relinquishment” of dower in regular form, by the mother, Mrs. McDonald. In reference to the alleged declaration of D. M. Bethune, relied upon to raise a case of estoppel, he, the said D. M. Bethune, denied that he ever agreed to relese the second parcel from the mortgage and hold the same against the first piece alone.

The cause coming on for hearing before Judge Aldrich, his honor held as follows : “As to the matter of estoppel, the burden of proof is on the defendant, and the proof offered fails to maintain said estoppel, as matter of law and fact. The said defence is overruled. As to the other defence, it does not appear that the defendant, A. J. Melton, holds any deeds from Mary McDonald, the widow of Alexander McDonald, who is alleged to have had a dower interest in the mortgaged premises; but, on the contrary, there appears on the deeds of D. A. McDonald to A. J. Melton of the mortgaged premises renunciations of dower by Mary McDonald. These renunciations of dower are a part of the title under which A. J. Melton holds from D. A. McDonald, the plaintiff’s debtor and mortgagor, and no evidence of any outstanding title purchased by Melton,” &c. From this decree A. J. Melton appeals — the grounds are printed in the “Brief” and need not be restated here.

1 The first exception complains that it was error in the judge to hold that the plaintiff was not estopped by the conduct and representations of D. M. Bethune, while he held the bond and mortgage, as' first assignee. That was largely a question of fact, and the burden of proof on the defendant, who made the plea of estoppel. The alleged declaration on which the plea rested was denied, and being entirely without consideration, we agree with the Circuit Judge, that the proof did not sustain the plea, in fact or in law.

2 The other exceptions in different forms seem to make the point that Mrs. Mary McDonald, being, as alleged, entitled to dower in the land, as the widow of Alexander McDonald, sold and conveyed it to Melton, and he is now entitled to have the dower laid off to him. Mrs. McDonald is not a party in the case, and nothing that is done here can affect injuriously any right she may have. But if her right to dower were clear, as to which we say nothing, the mortgagor never having been evicted, the defendant could not, upon that ground, resist foreclosure of the Shannon mortgage. Childs v. Alexander, 22 S. C., 185; Lessly v. Bowie, 27 Id., 194.

3 Melton, however, claims that he purchased the dower interest, and it should now be laid off to him. Even if Mrs. McDonald had regularly conveyed that interest to him, we do not clearly see how that could avail the defendant, who, having purchased from D. M. McDonald with notice of the mortgage, can be in no better condition than his grantor. But the record evidence does not show that Mrs. McDonald separately conveyed her claim for dower as such to Melton. On the contrary, she seems to have executed on each of the deeds of her son, D. A. McDonald, to Melton, what purports to be a regular “renunciation” of dower, which, her husband being dead, was not the proper means of conveying her separate dower claim, but as it seems to us, in no event could amount to more than uniting in the conveyances of her son, and thereby enabling him to obtain a higher price from the purchaser, Melton, than he otherwise would have done. We agree with the Circuit Judge that there was no outstanding incumbrance of which the defendant, Melton, could avail himself in resisting foreclosure of the Shannon mortgage.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.