102 S.E. 720 | S.C. | 1920
February 23, 1920. The opinion of the Court was delivered by The plaintiff brought this action to foreclose a mortgage. On the 22d of May, 1895, J.C. Hunter executed his bond and mortgage to J.D. Smith for the sum of $1,000. Mrs. Smith assigned the bond and mortgage to Mrs. F. Elmira Hunter, and Mrs. Hunter to the plaintiff. J.C. Hunter died on the 22d day of November, 1915. The record in this Court shows the following entry on the record of the mortgage:
"Received on April 22, 1911, of J.C. Hunter, five dollars on within bond and mortgage. (Signed) Mrs. F.E. Hunter, Assignee. Receipt entered on record May 22, 1915. (Signed) I. Frank Peake, Clerk of Court."
Norman-Murphy Company, one of the defendants, a creditor of J.C. Hunter, set up the statute of limitations and claimed, among other things, that the lien of the mortgage has expired.
There are twenty-five exceptions; but, in the view that this Court takes of the case, only one question need be considered, and that is: Has the lien of the mortgage expired?
Section 3535, Code of Laws 1912, vol. I, provides: "No mortgage * * * shall constitute a lien upon any real estate after the lapse of twenty years from the date of the creation *398 of the same: Provided, That if the holder of any such lien * * * cause to be recorded upon the record of such mortgage * * * a note of some payment on account, or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage * * * shall be, and continue to be, a lien for twenty years from the date of the record of any such payment on account or acknowledgment."
The question is: Has the lien of this mortgage expired? The note must be of a payment, and not of an ex parte credit.
A payment on a bond or note is an acknowledgment of the existence of the debt. There is a presumption of payment after the lapse of 20 years. In order to prevent the operation of this presumption, there must be an acknowledgment of the existence of the debt. In order to keep alive the lien of a mortgage, the mortgagor must do an act which keeps alive the lien or it expires. He may do that by written acknowledgment or by a payment which is in law an acknowledgment of the existence of the debt. It is not in the power of the holder of a mortgage to continue it in force for another 20 years by making a mere formal entry on the record. There is no competent evidence here that there has been any payment. The credit was nominal only. The only evidence of the payment is a self-serving declaration by the holder of the mortgage, made at the time of the entry on the record of the credit and that declaration not sworn to, and, even if it had been sworn to, would not have been competent evidence in any Court, because the mortgagor was at that time dead. There is no evidence to connect the mortgagor with the payment except the incompetent statement of the assignee, and no additional force is given to the statement from the fact that it is in writing. The lien of the mortgage has expired, and the exceptions that raise this question are sustained. *399
The appellant complains that the master and Circuit Judge have given the lien of J.E. Hunter a preference over the creditors of J.C. Hunter. The respondents, in argument, repudiate this construction of the report and decree, and it need not be considered. No other question arises in the case.
The judgment appealed from is reversed.
