36 S.E. 730 | S.C. | 1900
Aug. 7, 1900. The opinion of the Court was delivered by This was an action to foreclose a mortgage of real estate given to secure the payment of a promissory note, executed by defendant to the plaintiff. The allegations of the complaint were in the usual form appropriate to such an action, except that there was no allegation that the plaintiff was the owner and holder of the note and mortgage.
The defendant answered, in the first paragraph, saying: "That the defendant admits all the allegations of the complaint, except so much of the paragraph V. as alleges the whole sum of said note and mortgage is now due and owing to the plaintiff, which she denies." In the other paragraphs of her answer she makes substantially the following allegation: 1st. That on the 3d of February, 1896, she gave a note and mortgage to the firm of Allen Cooley, and that upon the dissolution of said firm her said note and mortgage were turned over to D.K. Cooley, one of the members of said firm, for the purpose of paying the debts of said firm of Allen Cooley. 2d. That some time during the month of February, 1898, B.B. Allen, the other member of the firm of *423 Allen Cooley, commenced an action against D.K. Cooley and T.D. Cooley, alleging amongst other things that D.K. Cooley had fraudulently transferred a large part of the assets of Allen Cooley which had been turned over to him to pay the debts of said firm, and was wasting and squandering said assets, and asking that a receiver be appointed to take charge of said assets. 3d. That a receiver was appointed, and D.K. Cooley was required to turn over the assets to such receiver. 4th. That the said D.K. Cooley transferred defendant's note and mortgage to Allen Cooley, mentioned in the first paragraph of the answer, to the plaintiff herein, after the order appointing the receiver was granted, although the assignment thereof was antedated. 5th. That the defendant, in ignorance of the foregoing facts, and being then under the belief that the plaintiff was the owner of the note and mortgage previously given by her to Allen Cooley, executed the note and mortgage sued on in this case in payment and satisfaction of her note and mortgage previously given to Allen Cooley. 6th. That the transfer of the note and mortgage given by defendant to Allen Cooley to the plaintiff was fraudulent, and made for the purpose of evading the order of the Court above referred to; and there was no consideration given by the plaintiff, and he took the same well knowing the purpose of the transfer, and that his demand on the defendant for the note and mortgage sued on in this case was a part of the scheme to put the assets of Allen Cooley beyond the reach of the Court. The 8th paragraph of the answer is in the following language: "That the defendant is informed and believes that the plaintiff is not the owner of the note and mortgage sued on in the action, nor was he the owner of the note and mortgage alleged to have been assigned to him by the said D.K. Cooley, and for which these now in suit were given, and that the said plaintiff has no right to bring this action."
The case was referred to the master, "to hear and decide all issues of law and fact." At the reference the counsel for plaintiff interposed a demurrer to the answer, except the *424 first paragraph thereof, on the ground that it fails to state facts sufficient to constitute a defense, in this: "that said answer shows on its face that the defendant admits all the allegations of the complaint, and sets up an affirmative defense, which is irrelevant to the issues raised by the complaint, and also that the answer fails to state that any other person has made or is making any claim against her for the same debt, which allegation is absolutely necessary in a case of this kind." The master stated that he would pass upon the demurrer at a later stage of the case and would allow testimony to be introduced — subject, of course, to his action on the demurrer. Counsel for defendant then moved to amend the answer by stating that, after the execution of the note and mortgage in suit, the defendant received notice from W.C. Tennent, receiver, of the order of the Court above referred to, and demanding payment to him, as receiver, of the money due by the defendant on the note and mortgage to Allen Cooley, and that the note and mortgage in suit was without consideration and void. The master said that he would allow the amendment for "the present," but that if he saw fit to disallow it afterwards, he would do so; and that he would allow testimony to be introduced in support of the allegations in the answer as amended; but that if he finally determined to disallow the amendment, he would strike out any testimony that would not have been received, if the answer had not been amended. The master then proceeded to take the testimony as set out in the "Case," which tended to sustain the allegations contained in the answer, which were demurred to. The master made his report, in which he sustained the plaintiff's demurrer to the answer, and refused the motion to amend, and holding that there was no denial of the allegations of the complaint, rendered judgment, as prayed for therein, in favor of the plaintiff. A copy of this report should be incorporated by the reporter in his report of the case. To this report the defendant filed exceptions, and the case was heard by his Honor, Judge Watts, upon the report and said exceptions thereto, *425 who rendered judgment sustaining some of the exceptions, and remanded the case to the master to hear and decide all questions of law and fact in the case, allowing the defendant twenty days to amend her answer, so as to set up the defense of want of consideration. From this judgment the plaintiff appeals upon the several grounds stated in the record. Let the decree of the Circuit Judge and the exceptions thereto be also embraced in the report of this case by the reporter.
It seems to us that the scope and effect of the answer, as originally filed, has been wholly misconceived. While it may be true that the first paragraph of the answer presents a negative pregnant, amounting to no denial at all, inasmuch as the form in which it is presented, may be regarded as admitting that there is something due on the note and mortgage sued on (Ency. of Pl. and Prac., vol. 1, 796; Curnow v. Ins. Co., 46 S.C. at pp. 93-4), yet, under the view which we take of this case, this matter becomes immaterial. It seems to us that the other paragraphs of the answer, properly construed, set up at least three defenses: 1st, fraud in obtaining the note and mortgage sued on; 2d, failure of consideration; and 3d, a denial that the plaintiff is the owner and holder of the note and mortgage upon which he bases his action. If the facts alleged in the second, third, fourth, fifth, sixth and seventh paragraphs of the answer be true (and they must be taken to be so on demurrer), then it is clear that a case of fraud on the part of the plaintiff in obtaining the assignment of the mortgage given by defendant to Allen Cooley, and also in obtaining the note and mortgage sued on, is presented, which should defeat plaintiff's right to a recovery in this action. And if the facts there alleged be true, especially those stated in the 6th paragraph of the answer, taken in connection with the other allegations, then the defense of want of consideration, or of failure of consideration (and in this case it matters not which), is certainly presented. For if the note and mortgage sued on were given in consideration of the payment and satisfaction of the note and mortgage to Allen Cooley, and *426 this last mentioned note and mortgage have not been paid and extinguished (as they have not been, if the other facts alleged in the answer be true), then certainly there was want of consideration, or, at least, of failure of consideration, for the note and mortgage sued upon. The contention on the part of the appellant that while failure of consideration of an obligation under seal, may be set up as a defense to an action on such an instrument, yet want of consideration cannot, as the seal imports a consideration, cannot avail the appellant in this case, for two reasons: 1st. Because the note, which constitutes the substratum of plaintiff's action, was not an instrument under seal — the allegation in the complaint being that the note sued on is a "promissorynote." And if the note was without consideration, then there was no debt, and if no debt, then there could be no valid mortgage. 2d. Because the defense was really a failure rather than a want of consideration. For if the transaction between the plaintiff and the defendant was, as it is alleged in the answer to have been, then it amounted to this, that the plaintiff agreed that if the defendant would give him the note and mortgage sued on, he would, in consideration thereof, pay and extinguish her note and mortgage to Allen Cooley; and this he not only has not done, but cannot do, if the allegations in the answer be true; and thus the consideration upon which he obtained the note and mortgage sued on has failed. 3d. The allegations in the 8th paragraph of the answer were clearly sufficient to raise the issue as to whether the plaintiff was the owner and holder of the mortgage sued on — which was certainly a material issue in the case. It seems to us, therefore, that the master erred in sustaining the demurrer to all the paragraphs of the answer, except the first, as those paragraphs of the answer did not set up the defenses above indicated; and if not clearly and sufficiently set up, then the plaintiff's remedy was by motion to make the answer more definite. It is true, that the answer does not set up in so many words that there was a "want of consideration" for the note sued on, or that *427 there was a "failure of consideration," but it does set upfacts which go to sustain such a defense; and that is sufficient. The view taken by the master as well as by appellant, that the defendant, by her answer, attempted to set up as a defense that the debt sued on was due — not to the plaintiff, but to another person, the receiver — is based upon an entire misconception of the answer. The defense is not that the defendant admits that she owes the debt evidenced by the note and mortgage sued on, but claims that she owes such debt to a third person, and not to the plaintiff; but, on the contrary, she practically denies that she owes the debt, evidenced bythe note and mortgage sued on, to any one, and, therefore, the provisions of section 143 of the Code, cited by counsel for appellant, have no application to this case.
While we see no real necessity for any amendment to the defendant's answer, inasmuch as, according to our construction of the original answer, she has already set up the defense of a want of consideration, or a failure of consideration, and also denied that the plaintiff is the owner and holder of the note and mortgage sued on, we see no objection to allowing the defendant to amend her answer, if she be so advised, as allowed by the Circuit Judge.
We see no error, therefore, in the judgment rendered by the Circuit Judge, although there might be some difference of opinion as to the reasons given for such judgment.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
