49 S.C. 469 | S.C. | 1897
The opinion of the Court was delivered by
The plaintiffs commenced this action on the 26th of January, 1895, to foreclose a mortgage of real estate. The complaint alleges that G. W. Egan and A. J. Pittman were copartners, doing business in Charleston, under the firm name of Pittman Bros., at the times mentioned in the complaint; that on the 1st of January, 1894, the defendant, S. J. Raysor, executed her bond to M. A. Moye, H. J. Moody, and A. B. Hooten, copartners as Moye, Moody & Co., conditioned for the payment of $1,500 one year from the date thereof, with interest at the rate of eight per cent, per annum, and to secure its payment executed a mortgage on a tract of land in Barnwell County; that said mortgage was duly recorded; that thereafter A. B. Hooten assigned his interest in said mortgage to M. A. Moye and H. J. Moody, and that M. A. Moye and H. J. Moody, copartners as Moye, Moody & Co., assigned said bond and mortgage to Pittman Bros.; that the sum of $1,263.40, with interest from the 1st of January, 1894, is due thereon, and prays for-a foreclosure of the mortgage.
The defendant, in her answer, sets up the defense that she was a married woman at the time of the execution of said mortgage, and that it was given to secure the payment of her husband’s indebtedness.
After hearing the case, upon testimony taken before the master, his Honor, Judge Earle, filed the, following decree: “This is an action on the part of the plaintiffs to foreclose a mortgage on real estate in said county. The defendant, S. J. Raysor, sets up that she was a married woman, and the said mortgage and bond was given to secure the purchase, by her husband, of a one-third interest, bought in the mercantile firm composed of M. A. Moye, H. J. Moody, and A. B. Hooten, and that the said mortgage was given to secure such purchase. It also appeared in that mortgage that the defendant declared that said mortgage was given for the benefit of her separate estate.
“The said mortgage was originally made to the firm of Moye, Moody & Co., composed of M. A. Mo3m, H. J. Moody,
“I am satisfied that the position of Mrs. Raysor was that of a surety in the execution of the said mortgage. The plaintiffs claim, however, that the defendant is estopped from the declaration contained in her mortgage from setting up such defenses. I am satisfied, also, that this contention on the part of the plaintiffs would be correct, if they were in a position to take advantage of such estoppel, but their position was not changed or altered by reason of such statement, made in the mortgage, by the defendant. The mortgage was transferred to secure past indebtedness, and the plaintiffs, therefore, parted with nothing of present value in consideration of said assignment. The action of foreclosure cannot be sustained, and it is ordered and adjudged, that the complaint be dismissed with costs.”
The plaintiffs appealed upon the following exceptions: “1. Because his Honor erred in finding as a fact that the bond and mortgage of the defendant, S. J. Raysor, was assigned to the plaintiffs, Pittman Bros., by Moye, Moody & Co., in consideration of past indebtedness; because there is no evidence whatever sustaining such a conclusion of fact. 2. Because his Honor erred in finding that it appeared upon the face of the assignment from Moye, Moody & Co. to the plaintiffs that the same was made in consideration of past advances made by the plaintiffs to Moye, Moody & Co.; whereas it is submitted that the proper and obvious construction of the terms of said assignment is that the said advances were made in consideration of said assignment, and his Honor erred in not finding that the plaintiffs were entitled to a judgment for foreclosure under said complaint.
The defendant also gave notice that she would ask that the said decree be sustained, upon the following additional grounds: “1. Because it appears from the evidence in this case that M. A. Moye and H. J. Moody, the original mortgagees, who assigned the bond and mortgage herein to the plaintiffs, had full notice of the object and purpose of the execution of a bond and mortgage; that the same was given to secure a debt of the defendant’s husband, and that they were not misled by the statement contained in the said mortgage that the same was given to secure a debt incurred for the benefit of defendant’s separate estate; and, therefore, the plaintiffs, as assignees of the said bond and mortgage,
The exceptions raise the following questions: 1st. Was the mortgage executed by the defendant to secure the payment of her husband’s indebtedness? 2d. Was the assignment of the mortgage to the plaintiffs in consideration of past indebtedness? 3d. Was the defendant estopped by her declarations in the mortgage from setting up the defense hereinbefore mentioned?
The testimony of A. J. Pittman throws no light whatever on this question. In the absence of testimony showing when the advances were made, this Court is of the opinion that the advances mentioned in the assignment were made before it was executed. If the assignment had mentioned that it was made in consideration of so many dollars, the appellant might well contend that it meant money paid at the time of the assignment, as money is easily carried about the person. The manner, however, in which advances are
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.