Simon v. Sabb

56 S.C. 38 | S.C. | 1899

The opinion of the Court was delivered by

Mr. Justice Gary.

As some of the exceptions raise the question that his Honor, the Circuit Judge, erred in refusing to sustain the demurrer interposed by all the defendants except Peyton M. Cater, it will be necessary to set out the complaint in the report of the case.

1 The first exception alleges error, as follows: “Because his Honor overruled the demurrer to the complaint for defect of parties, and held that the administrator of Caroline Williams and of Rebecca Williams, persons mentioned in the complaint, were not necessary parties defendant; whereas he should have held that the administrators of said deceased persons were necessary parties defendant in this action, they being charged with fraud.” We will first consider whether the administrator of Rebecca Williams was a necessary party defendant. Section 143 of the 'Code contains the following provisions: “The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others or by saving their rights; but when a complete determine of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in.” AVhether it is necessary that an administrator or executor, as the case may be, should be made a party to an action, depends upon the facts of the particular case. Fogle v. Church, 48 S. C., 86. The plaintiff was not a creditor of Rebecca Williams; she was not liable for the mortgage debt, and no judgment could be rendered against her administrator, who, it is not alleged, has any control over the lands or the proceeds thereof. Under these circumstances, the case of Trapier v. Waldo, 16 S. C., at page 288, shows conclusively that the administrator of Rebecca Williams was not a necessary nor even a proper party defendant. The act of 1894, hereinafter considered, has n0‘ application to the question whether the administrator of Rebecca Williams was a necessary party to the action.

2 The next question that will be considered is whether the administrator of Caroline Williams was a necessary party defendant. The act of 1894, 21 Stat., 816, contains the following provisions: “That from and after the passage of this act, no sale under or by virtue of any mortgage or other instrument in writing intended as security for a debt, shall be valid to pass the title of the land mortgaged unless the debt for which the security was given shall be first established by the judgment of some Court of competent jurisdiction, or unless the amount of the debt be consented to in writing by the debtor, &c.” The other provisions have no application to this case, as it is not pretended that there was any such consent. Whatever doubt may have existed prior to1 the act hereinbefore mentioned of the necessity for making the administrator of the mortgagor a party defendant, when the plaintiff only- sought to subject the mortgaged property to the payment of the debt, there was no doubt even prior to said act of the necessity for malting the administrator of the mortgagor a party defendant, if in addition to subjecting the mortgaged property to the payment of the indebtedness, • he also desired a judgment against the mortgagor’s estate, in order to- recover any deficiency that might remain after exhausting the mortgaged property. The act of 1894 deprived the mortgagee of the right to' subject the mortgaged property to the payment of .the debt before establishing the debt secured by the mortgage by the judgment of a Court of competent jurisdiction. In other words, it became necessary to recover judgment for a specific sum against the mortgagor’s estate before the mortgaged property could be sold. In order to recover such judgment the administrator of the mortgagor was a necessary party to the action, and the Circuit Judge erred in not so holding. The act shows upon its face that it has reference to- the foreclosure of mortgages executed prior, as well as those executed subsequent, to the passage of the said act. It only related to the remedy, and the legislature had the right to- make it applicable to the foreclosure of. mortgages, whether executed prior or subsequent to its passage. Stoddard v. Owings, 42 S. C., 88. The effect of sustaining the exceptions raising this question is a dismissal of the complaint, unless this Court should order the complaint to be retained so that it may be amended.

We will therefore consider the other exceptions for the purpose of determining whether there is such merit in the plaintiff’s case as demands that the complaint should be retained and amended. The second exception is as. follows: “II. Because his Honor, Judge Townsend,- overruled the demurrer, as to the second paragraph thereof, and held that the complaint stated' facts sufficient to constitute a cause of action; whereas he should have held that the complaint did not state a cause of action, in the following particulars: I. That the complaint stated as the basis of action, a note of a married woman with mortgage to secure advances for agricultural purposes, but does not allege that it was such a contract as a married woman could make, nor that it was for the benefit of her separate estate. 2. The plaintiff asks relief in equity against alleged fraud on a note tainted with usury; whereas it is submitted that he cannot come into* equity claiming relief on a note whose provisions violate the statute law of the State. He must come into equity with clean hands. 3. The plaintiff,' after alleging assignment to himself of bond and mortgage, does not allege that he is the innocent assignee of the same for value without notice; and without such allegation he is not entitled on his complaint to relief in equity. 4. The complaint alleges that Caroline Williams, charged with fraud, died before the commencement of this action; it is sought to recover on a note executed by said Caroline Williams as a security for advances made, and to sell, in order to' pay the note of said Caroline Williams, certain land, the legal title of which is in Julia Jones and the heirs at law of Rebecca Williams, deceased. It is alleged in the complaint that said Caroline Williams died intestate, and yet no allegation is made in the complaint to charge any personal representative either of Caroline Williams or of Rebecca Williams, although both are charged with fraud in the complaint.”

3 We will consider the questions raised by this exception in their regular order. At the time this contract was entered into, the right of a married woman to make such a contract was dependent on the power conferred upon her by the statute, and the burden of proof was on the person dealing with her to show that the contract was made with reference to her separate estate. In this case the complaint shows that Caroline Williams was a married woman when the note and mortgage were executed, and there are no allegations showing that the agricultural supplies were for the benefit of her separate estate. The complaint was, therefore, subject to demurrer, and the Circuit Judge erred in overruling it. But even if the allegations of the complaint were sufficient to. constitute a cause of action, 4 the written testimony, to wit: the memorandum of agreement when the-note and mortgage were executed, shows that the contract was not “as to her separate estate.” The memorandum of agreement which sets forth the consideration of the mortgage is as follows: “Memorandum of agreement made this 6th day of March, A. D. 1883, between Nathan Simon, of Allendale, S. C., merchant, and Stephen Mixson, William Solomon Williams, and Caroline Williams, of Barnwell County, planters. The said Nathan Simon agrees to- advance at his discretion to the said Solomon and Mixson such supplies for agricultural purposes as he may require from time to- time, not exceeding in the aggregate the sum of $250, to be employed in the cultivation of the plantation known as Mrs. Barnes’ Turkey Creek place, and about thirty acres, and the place of Caroline Williams, containing about fifty acres, twenty of which is under cultivation. The thirty acres on the place of Mrs. Barnes being the amount thereon cultivated by us. And the said- Caroline Williams, William Solomon Williams, and Stephen Mixson hereby agree that the said Nathan Simon shall have a lien for said advances, and the interest due thereon on all crops made on the said plantations during the year of 1883, in accordance with and subject to the provisions of the laws of the State of South Carolina. We further agree to ship to said Nathan Simon, or his factor, as he may direct, on or before the 15 th of October next, ten bales of cotton, and in default thereof to pay a commission of two and one-half per cent, thereon. We further bind ourselves that this is the only lien given this year on our crop and the only one we expect or intend to- give. Witness our hands and seals, the day above written. Caroline (her X mark) Williams, (l. s.) William Solomon (hisXmark) Williams. (l. s.) Stephen (his X mark) Mixson. (l. s.) Sealed and delivered in the presence of B. B. Sanders, F. S. Owens.” The note and mortgage were executed for the purpose of securing payment for the said advances which were to be made to William Solomon Williams and Stephen Mixson. It was, therefore, not a contract-“ás to her separate estate.”

5 2. We. will next consider the second question raised by this exception. It has been frequently determined by this Court that a complaint is not subject to a demurrer, if it contains allegations entitling the plaintiff to relief either on the law or equity side of the Court. This principle is conclusive of the question under consideration.

3. We proceed to a consideration of the third question raised by this exception. If the nóte and mortgage were valid, the mortgagee unquestionably had the right to' assign them, and the question whether the person to whom they were assigned was an innocent assignee for value without notice, has nothing to do with this case.

4. The fourth question is disposed of by what was said in considering the first exception.

6 The exceptions to the master’s report are not set out in the record. All the exceptions .to Judge Aldrich’s order, except one, are based upon the fact that he overruled certain exceptions to the master’s report. The exceptions to the said report are set out in the exceptions to the order of Judge Aldrich, but as they are not set out in the record elsewhere, they cannot be considered. It has been determined time and again that this Court will not consider, as part of the record, statements which are only contained in the exceptions. The rule has for its object the prevention of misunderstanding between counsel. Of course, this Court does not mean to reflect upon the attorneys for the appellants in refusing to consider said exceptions.

The only exception to the order of Judge Aldrich which is not susceptible to the foregoing objection is the one which complains of error in adjudging that Julia Jones and Lucretia Sabb pay any deficiency that may arise after exhausting the mortgaged property. This -was error, and- is disposed of by what was said in considering the first exception. We see no reason for allowing the complaint to> be retained for the purpose of amendment.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed and that the complaint be dismissed.