43 S.C. 117 | S.C. | 1895
The opinion of the court was delivered by
The appellant as plaintiff sought to foreclose a mortgage upon a tract of land containing 260 acres, and situated in Florence County, in this State. His action, therefore, against the defendant (respondent here) alleged that she executed such mortgage to him on 15th December, 1883, to secure her bond of even date with the mortgage in the penal sum of $2,000, conditioned that she would pay the plaintiff $1,000 twelve months thereafter, with interest at ten per cent, per annum until paid. The answer admitted that she had executed the bond and mortgage, but alleged that at that time she was, and now is, the wife of Bichard H. McIntyre; that the debt evidenced by the bond and secured by the mortgage
The cause came on for trial before his honor, Judge Norton, who, on the 7th day of July, 1894, decreed that all findings of facts and conclusions of law of the special referee should be sustained, except that he reversed that finding of the special referee wherein the defendant was said to owe the plaintiff $100.66, and that plaintiff was entitled to a foreclosure of the mortgage to pay that sum. On the contrary, he decreed that the defendant had fully paid the plaintiff all she owed him, and, therefore, the complaint should be dismissed.
From this judgment the plaintiff now appeals upon five grounds, as follows: “I. Because his honor erred in not sustaining the exceptions of the plaintiff, and in not holding that the whole consideration of the bond and mortgage was for purchases made by the defendant from the plaintiff, and for goods purchased by her from him, and for money received by her from him on the day the bond and mortgage were given, and that it all was for the benefit of her separate estate. II. Because his honor erred in not holding definitely that Mrs. McIntyre received at least $400 in money and goods on the day the bond and mortgage were given, and that her separate estate was chargeable with the same. III. Because his honor erred in his statement in giving the defendant credit for the $149.75,
No bill of sale of the personal property was made by the plaintiff to the defendant. At the trial, some eleven years afterwards, witnesses attempt to tell what the personal property consisted of. John Kuker says: “I had bills of sale and liens for 1883, at the time of execution of mortgage (by defendant); Mrs. McIntyre * * bought the stock, and buggies, and wagons, and, in fact, everything I had under bill of sale.” Now the bills of sale referred to were as follows: that of 22d May, 1882, covered one bay mare mule, about seven years old, and four head of cattle; that of 17th September, 1883, one black mare, about eight years old; that of 26th November, 1880, covered one two-horse Lowry wagon, one new top buggy, one bay mare, eight years old, one bay, swapped for grey, horse; and that of 2d March, 1882, one black horse mule, nine years old, one two-horse wagon. But his witness, J. DeJongh, says: “I think there were three or four horses advanced to her. There were two fine horses, valued at $350, as he paid that price in Charleston. The other two were common horses, worth about $125 each. * * The wagon was worth $25 or $30, buggy was worth about $85.” Aggregate these amounts, and the property turned over by this witness’ estimate was $710 or $715. Thus John Kuker has it that he sold to the defendant three horses, two mules, four head of cattle, one buggy, and one wagon. Richard H. McIntyre states in his testimony that he had only two horses at the date of his wife’s mortgage, but that no property was sold to defendant. The witness, DeJongh, says Richard H. McIntyre turned over the mortgaged property to plaintiff
Now, here is presented a strange spectacle. Plaintiff and his witness swearing to one state of facts; defendant and her witness swearing to another state of facts. There is, however, a very significant written statement, at least five times repeated by John Kuker, the plaintiff here, dated the 15th December, 1883, which is as follows: “Satisfied the within by mortgage and bond, dated December 15th, 1883. John Kuker.” This statement appears on the back of R. EL McIntyre’s note to him for $140.75; also on the back of R. H. McIntyre’s bill of sale dated May 22d, 1882; also on the back of R. IE. McIntyre’s bill of sale dated 15th January, 1883; also on the back of the bill of sale of R. EL McIntyre dated 19th September, 1883; and also on the back of the bill of sale of R. H. McIntyre dated 2d March, 1882. May not this memorandum, signed by the plaintiff at the time of the transaction, when everything was fresh in his mind, solve the difficulty? The special referee so finds. The Circuit Judge concurs in such finding. Under our established rule we will not disturb the finding of fact by them separately made; especially as, under the law, the burden was on the plaintiff to establish the debt as one against the separate estate of the married woman. Hence the fifth exception is overruled.
As to the first exception, complaining as it does of the Circuit decree for failing to find the whole consideration of the bond and mortgage sued on here to be for purchases, and also for money loaned, we have but little trouble in disposing of it in the light of our decision just announced of the question raised by the fifth exception; for we have held that, instead of the defendant purchasing the property mortgaged by her husband to the plaintiff, she assumed the payment of his indebtedness to Kuker. The Circuit Judge did hold that a part of the mortgaged debt was for borrowed, money. This exception must be overruled.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.