52 S.C. 497 | S.C. | 1898
The opinion of the Court was delivered by
This was an action to foreclose a mortgage given by the deceased devisor, Mamie Wells, to secure the payment of her bond to the plaintiff, conditioned for the payment of $946. The undisputed facts are, that on the 17th of September, 1894, the said Mamie Wells executed the said bond and mortgage, which covered
The following is a copy of exhibit B, above referred to: “Beaufort, S. C., September 21, 1894. Whereas Frederick Wells is indebted to me in the sum of $946 for building material furnished under an agreement; and whereas he, being desirous of paying the whole or part of said debt in audited claims on the county for services rendered as coroner, I have agreed to take all such claims, which shall be paid out of this year’s taxes at par, and all others thereafter at a discount of ten per centum, and the net proceeds of all such claims shall be placed to his credit on account. (Signed) N. Christensen.” The testimony of the defendant, F. W. Wells, was as follows: “That I made a contract with Capt. Christensen for building the house in question.
We are, therefore, of opinion that the defendants have failed to show by the preponderance of the evidence that the debt evidenced by the bond and mortgage executed by Mrs. Wells, at least to the extent of $850, falls within any of
The evidence, however, does show that $96 of the amount mentioned in the bond and mortgage was the debt of the husband, F. W. Wells, for building material furnished' to him individually; and for that much of the amount mentioned in the bond and mortgage the separate estate of Mrs. Wells is not liable. But it seems to us that the payments made by F. W. Wells, mentioned in the complaint, should first be applied to the payment of this $96, and only the excess of such payments should be applied on the debt due by Mrs. Wells.
The judgment of this Court is, that the judgment of the Circuit Court be modified as herein indicated, and that the case be remanded to that Court, with instructions to carry out the views herein announced.