Harrell v. Parrott

50 S.C. 16 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This is an appeal from a judgment of foreclosure of a mortgage of real estate rendered by his Honor, Judge Aldrich. The decree of the Circuit Judge, which, with the exceptions thereto, should be set out in the report of this case, except so much thereof as relates to the matter of homestead, to which there is no exception, and that part thereof providing for a sale of the mortgaged premises, sets forth fully and fairly the facts of the case, and hence no detailed statement thereof is needed here. It is sufficient to say, in general terms, that the mortgage was given to secure the payment of a note, of which the following is a copy: “$1,840. On the 1st day of December, 1881, I promise to pay I. M. Harrell, or order, $1,840, for value received, with interest from date. J. N. Parrott (u. S.) December 1, 1880.” Besides certain credits indorsed on the note, which were allowed, the note bears the following indorsements: “Interest on the within note to be at the rate of ten per cent, after 1883. October 20, 1885. (Signed) J. N. Parrott.”

The general questions raised by the appeal are,frst, as to whether defendant should be allowed credit for certain alleged payments not indorsed on the note; second, whether there was any usury in the transaction.

1 The question as to payments is a pure question of fact. The burden was on the defendant of showing other payments than those indorsed on the note, and this he failed to show. It is only necessary for us to say that we are quite satified with the views presented by the Circuit Judge in his decree as to this matter.

As to the second question, it is quite certain that the note does not show on its face any evidence of usury, and hence it was incumbent on the defendant to show that, nevertheless, there was usury in the transaction. For this purpose the defendant relied, largely, upon a paper marked exhibit C, set out in the “Case,” which purports to be a calculation showing the balance due on the note on the 1st of January, 1885, in which it appears that interest was calculated at the rate of nine per cent, per annum for a part of the time prior to the 1st January, 1883, and from that time at ten per cent. At the trial it was admitted, “that if Dr. Luther Harrell were present, he would testify that he made the figures embraced in paper C, subject to objections as to the admissibility of such testimony.” The defendant testified that this paper was handed to him by Dr. Harrell, in the presence of the testator, I. M. Harrell, on the 20th of October, 1885, when the indorsement on the note, above copied, was made. What relevancy the paper styled exhibit C had to any issue in this case we are at a loss to perceive. It certainly does not appear that any settlement was made, or even proposed, according to that calculation. On the contrary, it appears that on the same day on which defendant says that paper was handed to him, another and a different arrangement was made between the parties, and evidenced by the indorsement then made on the note and signed by the defendant. The obvious meaning and effect of this new arrangement was that the note should continue to bear interest from its date at the rate of seven per cent, per annum until after the expiration of the year 1883, from which time forward, to wit: from the 1st of January, 1884, the note should bear interest at the rate of ten per cent, per annum; and this was the view, adopted, and properly adopted, by the Circuit Judge.

It is contended, however, by appellant that there was error in this view, for two reasons. 1st. Because the new agreement evidenced by the indorsement is without consideration, and, therefore, void. 2d. Because it provided for the payment of the higher rate of interest from a date anterior to the date of the new agreement, evidenced by the indorsement on the note. Both of these positions are disposed of by authorities; the first by the cases of Sanders v. Bagwell, as first reported in 32 S. C., 238, and next in 37 S. C., 145, and by the recent case of Sloan v. Latimer, 41 S. C., 217, in which last named ‘case, as is well said by Mr. Justice McGowan, the effect of such an indorsement or memorandum was equivalent to an erasure and an interlineation of the note as originally written, so as to express the intention that the note was to bear interest from the 1st of January, 1884, at the rate of ten per centum per annum. The new promise to pay an increased rate of interest being thus incorporated into and becoming a part of the note, would, of course, be supported by the original consideration. This would be manifestly in accordance with the intention of the parties, as expressed by the words, “Interest on within note to be at rate of ten per cent, after-1883.” The second position is disposed of by the case of Utley v. Cavender, 31 S. C., 282, where precisely the same point was raised, and decided contrary to the view contended for by appellant.

The judgment of this Court is,- that the judgment of the Circuit Court be affirmed.