24 S.C. 572 | S.C. | 1886
The opinion of the court was delivered by
The object of this action is to foreclose certain mortgages of real estate, alleged to have been given
There is also a second cause of action set forth in the complaint, based upon a bond of defendant’s to Asa Burke in the penal sum of eight thousand dollars, conditioned for the payment of four thousand dollars, bearing date December 1, 1874, secured by a mortgage on the Gervais street lot, bearing even date with said bond ; but as there seems to be no controversy in regard to the second cause of action, it need not further be alluded to.
The defendants filed a demurrer to the complaint upon several grounds, all of which have been disposed of except the following: “Second. That several causes of action have been improperly united, in this, that one cause of action against the defendants, Edwin E. Gary and Henry L. Tappan, being to foreclose a mortgage by them executed to the testator, Asa Burke, of a certain lot of land in the city of Columbia, has been improperly joined
The case subsequently came on for trial on the merits, when judgment was rendered that the plaintiff have the relief demanded in his complaint, and that he have leave to move “for such formal judgment as may be necessary to effectuate this purpose,” before the judge of the Fifth Circuit, or the judge in turn presiding for the County of Richland. From this judgment defendants appeal upon the following grounds :
1.' That his honor, the Circuit Judge, erred in holding that the defendants went to trial upon the merits before Judge Wither-spoon, were cast, and appealing from this decree, took up, at the same time, for review by the Supreme Court, the judgment upon the demurrer.
2. That his honor, the Circuit Judge, erred in holding that “the original transactions were between parties nearly related, uncle and nephews, the latter having been charged with the preparation of the papers, and are, therefore, the authors of the discrepancies of which they so loudly and persistently complain. The plaintiff, upon the other hand, is at great disadvantage.”
3. That his honor, the Circuit Judge, erred in ordering and adjudging “that the plaintiff herein have the relief demanded in his complaint; and that his counsel have leave to move before the judge of the Fifth Circuit, or the judge in turn presiding for the County of Richland, for such formal judgment as may be necessary to effectuate this purpose.”
This appeal, therefore, presents two leading questions: First,
First, as to the demurrer. While it is quite true that the complaint is very inartistically framed, yet we think by a liberal construction of its terms enough appears in it to relieve it from the objection taken by the demurrer. To sustain the demurrer, it must appear upon the face of the complaint that the individual mortgage of Henry L. Tappan was in no way connected with the debt, the collection of which is sought to be enforced by the foreclosure of the two mortgages mentioned in the statement of the first cause of action. This,-we think, does not- appear, and on the contrary there is enough in the complaint to show that these two mortgages, though purporting to be given to secure the two bonds mentioned in them, were really given to secure the payment of the note for three thousand dollars, described in the first paragraph of the complaint. The allegation made in the sixth paragraph of the complaint, “That this plaintiff has never had in his possession either of the bonds or obligations referred to in this paragraph, but is induced to believe, and does believe, that both the mortgages aforesaid were executed to secure the payment of the obligation mentioned in paragraph 1 hereof,” was, doubtless, intended as an allegation of the fact that said mortgages were really given to secure the note for three thousand dollars, made upon information and belief, the only way in which it could be made by an administrator; and if it can be so construed, as we think it can, it would be sufficient.
The statement that one “is induced to believe” a certain fact necessarily implies that he has received reliable information that such was the fact, for it would be difficult to conceive how otherwise he could be induced to believe such fact. Jt is true that, speaking with the utmost strictness, an allegation of belief of a fact is not an allegation of the existence of such fact; and it is equally true that the ordinary allegation, frequently found in complaints, that the plaintiff is informed-and believes that so and so is a fact is not, strictly speaking, an allegation of the existence of such fact, but simply an allegation that the plaintiff has been
Next as to the appeal from the final judgment. We are unable to see the pertinency of the first ground of appeal. For even assuming that the Circuit Judge was not entirely correct in using the language imputed to him by this exception, it is perfectly manifest that it does not affect any question raised by this appeal. His honor was simply reciting what had occurred in the previous history of the case, and the only thing in it which could be regarded as objectionable, and that only by implication, was the statement that the Supreme Court had, in another case (Dial v. Tappan), sustained the judgment overruling the demurrer, which we have just been considering. This the Circuit Judge, ma-ni"festly, did not mean; and, even if he had, it cannot affect this case, as is conclusively shown by the fact that the question raised by the demurrer which we are called upon to decide in this case was not, and could not have been, considered in the other case, and has now been considered and decided upon its merits, without reference to the former decision.
Whether the Circuit Judge was right or wrong in making the statement attributed to him by the second ground of appeal, seems to us so wholly immaterial to the questions raised by this appeal that we have not deemed it necessary to inquire into the correctness of such statement.
The only remaining ground is couched in such general terms, that, under the rule, it might well be disregarded. But, as we are always averse to deciding cases upon purely technical grounds, we propose to relax the rule in this instance. As well as we can judge from the argument presented in behalf of appellants, the object of this exception was to raise a question of fact — whether
The only remaining question, then, is whether there was any error in the conclusion that the two mortgages were really intended to secure the payment of the three thousand dollar note. Under the view which we have taken of the allegations of the complaint, inasmuch as there was no denial in the answer of the defendants that such was the real intention, there was no necessity for further proof. But, waiving this, we think there was sufficient testimony to sustain the conclusion reached by the Circuit Judge. The papers all bear the same date, October 9, 1873, and the two mortgages make up the precise amount of the note, and this, with the testimony of Sowden, the administrator in Massachusetts, tve think, was quite sufficient to warrant the conclusion adopted by the Circuit Judge, especially in the absence of any denial or explanation on the part of the defendants in their answer.
It is not asserted or pretended that the testator, in his lifetime, had assigned the bonds mentioned in these mortgages to any one, and if his administrator in Massachusetts has, since his death, assigned them to a third person, such assignee, as has already been determined in Dial v. Gary (14 S. C., 573), could
The judgment of this court is, that the judgment of the Circuit Court be affirmed.