57 S.C. 182 | S.C. | 1900
The opinion of the Court was delivered by
This is an action to foreclose a mortgage of land described in the complaint. The facts are set out in the decree of his Honor, the Circuit Judge, which will be reported. The appellants’ exceptions will not be considered in detail, but under the classification of the questions raised by them, made by the respondents’ attorney, to wit: “1. Did Rufus Goode and others have the right to mortgage their interest in the land in question to the plaintiffs? 2. Is the appellant, George PI. Taylor, with his grantee, Thomas Waller, estopped from disputing the validity of the said mortgege? 3. Was the equitable interest of the defendant, George IT. Taylor, merged in his legal title to the mortgaged premises ?”
E. M. Lipscomb testifies: “I never had any talk with Mr. Taylor, I took a second mortgage, and there remains now $i22.29, with eight per cent, interest from January 1st, 1895. Cross-examined: I had no conversation with Mr. Taylor before taking the mortgage. Rufus Goode showed me receipt from Mr. Taylor. I do not remember any conversation with Mr. Taylor. I understood Mr. Taylor had a first mortgage. I never made Mr. Taylor any offer to pay him the amount due on his mortgage, the purchase money of the land. I don’t know when Mr. Taylor sold the land to Thomas Waller. I don’t remember to have had any conversation with Thomas Waller in reference to the amount due me on mortgage. I never offered to pay Thomas Waller the amount due by the Goodes on the mortgage for purchase money. The money advanced to the Goodes under my mortgage was $500. Goode told me Mr. Taylor was willing for me to take a mortgage on the land for the 'mules. I never saw Mr. Taylor in regard to the matter. The price of the mules was $300; the mules cost me $250. The Goodes paid me on the mortgage debt $377.71.”
George H. Taylor, a witness for the defense, testifies: “When the Goodes were burned out, they came to me, and I told them they had better go to Mr. Lipscomb, as they had been running an account there. Rufus said something
In reply, Jackson Goode testifies: “I was present when this mortgage to Lipscomb & Co. was executed. We three who signed were present, also Thos. Waller was present. Mr. L. Rice drew up the papers. Mr. Rice read these over and, Thomas Waller was standing by. Rufus told Thomas Waller that he was going to give Mr. Lipscomb a second mortgage on the place for the stock.” ■
We are unable to discover in the foregoing any testimony whatever that George H. Taylor waived his-rights in the premises in favor of the plaintiff herein; on the contrary, the testimony shows that the mortgage executed in favor of the plaintiff was only intended as a lien upon the equitable interest of Robert Goode and others. The exceptions raising this question are sustained.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed.