51 S.C. 499 | S.C. | 1898
The opinion of the Court was delivered by
The plaintiffs’ action was to foreclose a mortgage executed by the defendant to their intestate on the 2d Februaty, 1883, due 1st October thereafter, to secure defendant’s sealed note for $175. The defendant set up a counter-claim for usurious interest; also pleaded payment in lifetime of intestate; and also that payments thereon to intestate were not duly credited. Under an order of reference, the issues of law and fact were heard and reported on by E. R. Hill, Esq., as master for Spartan-burg. Exceptions were filed to the master’s findings of fact and conclusions of law, which came on to be heard before his Honor, Judge Witherspoon. His decree allowed an additional credit of $30 to the defendant, and gave plaintiffs a decree of $96.80, with interest thereon from 15th day
2. That the testimony required that defendant should have been allowed credits on his note: $10 alleged to have been paid in gold; $5 paid on the road to Gaffnejq $10 alleged to have been paid at the time of a trade for a wagon between Fowler and Bridges; $18.09 with money got from Moore; $16 with money got from Charles Fowler; and money paid to intestate by Bridges and Sarratt. We have examined this testimony with care. We do not remember ever to have encountered more indefiniteness in testimony. No time is fixed for any of these alleged payments, except for the very last. Inasmuch as defendant owed other debts to the intestate besides the note and mortgage now sued on, we do not see how we can impute error to the Circuit Judge and master in declining to allow these credits. We find in the “Case” that the intestate placed two credits on the note — one for $50 and one for $17, with the date of each, both of which were after the note matured. So ‘far as the
3. -That the $30 ordered to be credited as money paid by defendant to the wife of intestate, as his agent, should be credited as of 15th of June, 1896 — when it is submitted an earlier credit should have been given. We think, under the testimony, the proper date was fixed. It was defendant’s misfortune not to be able to establish the true date. That, under the testimony, the sum of $96.80 was not correct as the amount owed by the defendant on 15th June, 1896. We have examined the testimony from beginning to end, and it is apparent therefrom that full justice, has been done to the defendant.
4. That there was an error by Circuit Judge in ascribing the credit of $48, allowed by the master, to the $16-paid by Sarratt: $16 by Bridges. The testimony showed that three persons who bought hogs, each of whom owed about $16, and which defendant had included in his note, paid their indebtedness to the intestate on or about 1st October, 1883; when defendant’s note matured. There were no other payments than these to make up this account for which credit was allowed by the master, and, therefore, the Circuit Judge did not err when he approved the finding of the master.
The eighth exception imputes error to Circuit Judge for not having sustained the position that the plaintiff’s intestate had charged usurious interest. We have examined the “Case,” and not a scintilla of evidence there appears to support this charge. It is overruled.
2. That after admitting the defendant to have credit for the $30 paid to the wife of the intestate, it was error to direct its application to the note in suit, and not to some other notes held by the estate of intestate against the defendant. The note sued on is the only note of force in the light of the testimony of defendant, which, was admitted without objection; the other note, that assigned to intestate by R. E. Tinder, was included in the note and mortgage sued on. So, therefore, if the defendant was to obtain any benefit from the $30 credit, it had to be placed on the note sued on. It is true, that the plaintiffs’ counsel very ingeniously call our attention to the fact that the present note and mortgage were executed on the 2d February, 1883, while the assignment from R. E. Tinder of his note and mortgage to the intestate occurred on the next day. It should be recalled, however, that the papers show that the
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.