33 S.C. 283 | S.C. | 1890
The opinion of the court was delivered by
Mrs. Lucinda A. Branyan, during her life, executed to the “American Mortgage Company” a mortgage of certain lands to secure a note made to them for $550 and interest; and this note contained the additional stipulation, “and in case the note is collected by suit, I agree to pay all costs of collection, including ten per cent, of the principal and interest as
The heirs excepted to so much of the report as allowed the item of counsel fees — $64.73. Judge Aldrich sustained the exception, and upon that point overruled the report. The company, mortgagee, appeals to this court upon the following grounds : “1. Because the mortgagor promised and agreed in her said note that in case the note was collected by suit, she agreed to pay all costs of collection, including ten per cent, of the principal and interest as attorneys’ fees. -2. Because the proceedings had in this action brought it within the scope and meaning of the mortgagor’s contract and entitled the defendant company to the ten per cent, attorneys’ fees, as much as if it had been a suit for foreclosure, and the Circuit Judge erred in not so holding.”
It is not doubted that the mortgagor, Mrs. Branyan, made the stipulation as to attorneys’ fees, and it is quite clear that she had the right to do so. Aultman & Taylor Co. v. Gibert, 28 S. C., 313. The only question, then, is, whether the money was “collected by suit.” There certainly was a legal proceeding, which resulted in its collection. True it is, that in that proceeding the company was not the plaintiff. Mrs. Branyan died, and the heirs took the initiative for partition; but they made the company a party defendant, and the company answered, claim
We cannot doubt that the defendant company collected the money due on the note and mortgage “by suit.” “Any creditor so coming in is a party in every sense, as much so as if he had commenced the action for himself and other creditors, or was made a defendant by name, and filed a formal answer.” Westfield v. Westfield, 13 S. C., 485. The only duty of the court is to interpret and direct the enforcement of the contract.
The judgment of this court is, that the judgment of the Circuit Judge be reversed, and the report of the master be affirmed.