113 S.E. 788 | S.C. | 1922
September 26, 1922. The opinion of the Court was delivered by The appeal is from a circuit decree of Judge John S. Wilson, confirming a report of Hon. S.T. Lanham, Master of Spartanburg county, in an action to foreclose a real estate mortgage. Let the report of the Master be incorporated in the report of the case.
The plaintiff sold the defendant a tract of land and conveyed title by deed, containing the usual covenant of warranty, dated November 9, 1918. A balance of $3,790 on the purchase price was evidenced by three notes, secured by a mortgage on the land, each of the notes, dated November 9, 1918, being for approximately one-third of this balance, due one, two, and three years from date. When the first note came due the defendant offered to pay the plaintiff the entire balance due on the land, but at the instance of the plaintiff, who desired to keep the money out at interest, only $400 was paid. Defendant claims that the plaintiff then assured him he could have, all the time he wanted in paying the debt, and that, relying upon this assurance, he invested his money in other real estate. Before the maturity date of the second note, November 9, 1920, this amicable status of affairs was disturbed by a rumor that had reached the defendant of an outstanding dower claim in the land. The plaintiff, about the year 1907, had married the defendant's sister in Spartanburg county, and seems to have lived with her up to the time of her death, which occurred before the execution of the deed to this land. Upon the conveyance from the plaintiff to the defendant there had been no renunciation of dower. Defendant reported *267 to plaintiff that he had heard of a wife living in Alabama who had a dower claim in the land. Plaintiff assured him that he would guarantee there was no legal dower in the land. The defendant, however, seems not to have been satisfied. When the maturity date of the second note, November 9, 1920, arrived, the plaintiff requested payment of this second note and of the balance due on the extended first note. Defendant declined to meet these payments, apparently upon the ground that he was entitled to have the cloud on the title in the form of the alleged dower claim removed. The mortgage contained a provision that upon default in the payment of annual interest or in the payment of any of the notes at maturity all of the notes should become due. After default the plaintiff placed the papers in the hands of his attorney for collection. In January, 1921, just before this suit was started, defendant offered to pay the amount due on the first two notes, including attorney's fees, but the offer was made with notice to the plaintiff that payment of the last note would be contested on the ground that there was an outstanding dower. Plaintiff declined the offer and brought action to foreclose the mortgage. The Master found and concluded that the alleged dower claim of the plaintiff's first wife had been extinguished by a valid Alabama divorce, that there was no outstanding inchoate right of dower, and that plaintiff was entitled to foreclosure. From a formal decree of the Circuit Judge confirming the Master's report, and ordering foreclosure and sale, defendant appeals upon ten exceptions.
Appellant's exceptions numbered 1 to 7, inclusive, are directed to the contention that there is an outstanding inchoate right of dower in the land, against which defendant is entitled to protection, and that the Circuit Court erred in not so holding. These exceptions must be overruled. The plaintiff was married to his first wife in the State of Alabama in 1886. Both he and his wife were then residents of that State. In 1889, the wife brought suit in *268
the Alabama Courts for a divorce. In that suit the husband (the plaintiff here) appeared and answered, denying among other things, that he was not a resident of the State of Alabama. The suit resulted in a decree of absolute divorce between the parties. A properly authenticated transcript of the record in the "chancery Court of Eighth district, Northeastern chancery division of Alabama, in the case ofAnnie A. Shirley, Complainant, v. Wm. J. Shirley, Respondent,"
was introduced in evidence on the trial below. There was no evidence tending to impeach the jurisdiction of the Alabama Court as to the cause or as to the parties. On the contrary, the plaintiff, Shirley, the defendant in the divorce suit, testified that he was at the time of the divorce litigation a resident of Alabama, and that he was personally present at the examination of witnesses in the cause. The question presented is so clearly ruled by the recent decision of this Court in the case of Dawson v. Della Torre et al.,
The appellant's eighth exception assigns error in not holding that the effect of the plaintiff's statement to defendant, at the time the first note fell due, that he could have all the time he wanted, was to deprive plaintiff of the right to foreclose the mortgage until defendant was given a reasonable time to pay the debt after notice and in not holding that under the circumstances the attorney's fee should not be charged against the defendant. Aside from any question as to whether there was sufficient *269 consideration to support such alleged new promise by the plaintiff, it clearly appears from the evidence that the defendant's ground for not paying the installments of the purchase price due was not the alleged agreement to extend the time of payment, but the supposed existence of an outstanding dower right in the land. Defendant alleges in his answer that he is ready and willing to pay, and "has been ready and willing to pay when he gets a clear title." There was also testimony to the effect that plaintiff, through his attorney, offered to allow defendant a reasonable time to raise and pay the entire balance due. There appears to be no adequate basis of fact for the error assigned and the exception is overruled.
It is further contended (ninth exception) that the tender by defendant after default of the amount due on the first two notes gave him a right to have the action for foreclosure postponed until he "could have a reasonable time to ascertain whether or not there was really an inchoate right in the premises." Default having been made in meeting the payments stipulated, plaintiff's legal right to declare the whole debt due (Farmers Bank v. Fudge,
The only point remaining for consideration (tenth exception) is predicated upon the contention that defendant's counterclaim for damages, on account of losing a profitable sale because of the outstanding dower right of plaintiff's wife, should have been allowed. There appears to have been some testimony upon this issue, but no specific finding of fact thereon by either the Master or the Circuit Judge. *270 There was no outstanding dower interest in the land. The defendant held plaintiff's warranty deed. When the rumor as to the dower was brought to plaintiff's attention, he assured defendant there was no valid claim outstanding. Appellant had suggested no good reason and has cited no authority for the contention that in the circumstances indicated and in the absence of other evidence plaintiff was in any wise legally responsible in damages for the failure of would-be purchasers to buy defendant's land. The exception must be overruled.
The decree of the Circuit Court is affirmed.
CHIEF JUSTICE GARY and MR. JUSTICES FRASER and COTHRAN concur.
