Equitable B. & L. Ass'n v. Hoffman

50 S.C. 303 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Justice Gary.

These actions were commenced on the 1st of October, 1895, in the Court of Common Pleas for Edgefield County, to foreclose two mortgages executed by the defendant to the plaintiffs, on the 19th day of April, 1892, and the 11th day of May, 1893, respectively, to secure her bonds to the said plaintiffs of the same date. The two cases involved the same issues, and were tried together, before his Honor, Judge Buchanan, upon the testimony reported by the master. The facts are more particularly set out in the decree of his Honor, Judge Buchanan. The plaintiffs appealed upon the following exceptions: “1st. Because his Honor erred in holding that the contracts were to be performed in South Carolina, and was a South Carolina contract and governed by the laws of South Carolina, when he should have found that the two contracts were governed by the laws of the State of Georgia. 2d. Because his Honor erred in considering and deciding the question of usury under the laws of the State of South Carolina, when he should have considered and decided said question under the laws of the State of Georgia. 3d. Because his Honor erred in deciding and holding that the contracts were usurious. 4th. Because his Honor erred in holding that the contracts, under the laws of Georgia, were not usurious, and no penalty could attach to the plaintiffs. 5th. Because his Honor erred in not allowing the plaintiffs ten per cent, attorney’s fees, when the contracts distinctly specified that ten per cent, attorney’s fees should be allowed, if the contracts were forced to collection by an attorney. 6th. Because his Honor erred in holding that the amounts paid monthly on the shares of the defendant should be applied to reduce the principal of the debt. 7th. Because his Honor erred in finding that there was due by the defendant to the plaintiff on both of said contracts the total sum of $1,031.46. 8th. Because his Honor erred in not allowing the plaintiff interest on the amount found due by him, from date of filing of the decree up to the date fixed for the sale of the real estate.”

1 The facts in these cases are in no respect materially different from those in the case of Equitable Building and Loan Association v. Vance, 49 S. C., 402, except that one of the bonds herein contains the following provision: “It is further understood and agreed, that this obligation is a Georgia contract, and in all respects subject to and governed by the laws of Georgia.” That case is decisive of all the questions raised by the exceptions, except the 5th and the 8th.

2 We do not wish to be understood, however, as assenting to the doctrine, that if the contracts were to be construed with reference to the laws of South Carolina instead of Georgia, they would not be usurious.

3 The 5th exception will now be considered. The bonds provide for the payment of attorney’s fees of ten per cent., and as the contracts are held not to be usurious, it follows that there was error in not allowing such fees.

4 We will next consider the 8th exception. This exception seems to have been taken under a misapprehension as to the effect of the judgment of foreclosure, as we fail to find where his Honor decided that the plaintiff was not entitled to interest, from the date of filing of the decree up to the time fixed for the sale of the property.

It is the judgment of this Court, that the judgment of the Circuit Court be modified so as to conform to the views herein announced.

Mr. Justice Jones concurs in the result.