38 S.E. 462 | S.C. | 1901
April 8, 1901. The opinion of the Court was delivered by This is an action by which the plaintiffs seek to have a mortgage adjudged null and void, as a could upon their title to land, and in which the defendant, as an individual, resists plaintiffs' claim and seeks to have a mortgage foreclosed as upon the said land of plaintiffs. All the issues of law and fact were referred to L.A. Wittkowsky, Esq., as master for Kershaw County. The master took all the testimony, and his report on all the issues was admirably done. This report of the master should be reported in full. When the report and exceptions came on to be heard by his Honor, Judge Klugh, although he modified some of the conclusions of law embodied in the master's report, he reached the same opinion on the plaintiffs' equities as did the master, and accordingly adjudged that the mortgage be cancelled by the clerk of the Court as null and void. From this decree the defendant has appealed, and the plaintiffs, in accordance with the established practice, have served notice of the grounds they will urge before this Court, in case defendant's exceptions should prevail, why the errors *229 of the Circuit Judge, if corrected by this Court, will lead to the affirmance of the decree.
For reasons which we will subsequently give, we prefer to pass at this time upon these grounds submitted by the plaintiffs:
"I. That the mortgage in question was made by a married woman, and the defendant in this action, upon whom the burden of proof rested, failed to produce any testimony to show that said mortgage was a contract which the married woman was competent to make; and that the finding of the master upon this point, concurred in by the Circuit Judge, is entirely without any evidence to sustain it." It is quite true that Mrs. A.E. Singleton was a married woman when she made the mortgage in question, and that it was the duty of the defendant to show by proof that such debt when created was to be paid by the mortgagee out of her separate estate, or, in other words, that the debt was created for her separate estate (Habenicht v. Rawls,
"II. That his Honor, the Circuit Judge, should have held that the covenant of warranty in the deed of Robert Singleton to H.C. and John A. Singleton covered the whole premises embraced in said deed, and not only one-third thereof, said covenant of warranty being entire and unconditional, and there being no evidence to the contrary, if the same had been competent; and that his Honor erred in attempting to apply rules of equity to the construction of a written instrument which should have been given its full legal effect." To understand this ground of appeal, we will state the facts which gave rise to the question. Robert Singleton's first wife, Mrs. A.E. Singleton, departed this life intestate in June, 1893, leaving her husband and the plaintiffs, her only children, her heirs at law. He soon afterwards married the defendant, Mrs. Esther Singleton. It may be readily supposed that this circumstance angered the two sons, Howard C. Singleton and John A. Singleton, who were the only children of the marriage of Robert and A.E. Singleton. At any rate, we find that they quarreled as to the division of her landed property. Peace was, however, restored on 4th January, 1894, by an agreement of the father to accept a deed of two-thirds of the house and lot now in controversy by Howard C. and John A. Singleton to him for life; he already owned one-third thereof, and then he in turn agreed to convey by deed to Howard and John Singleton the whole property (house and lot), to take effect at his death. Both deeds were executed on that day. A general warranty was given in each deed, although he, Robert Singleton, did not specify in his *231 warranty that it was intended to include a warranty against any and all incumbrances; yet in this State — certainly since the case of Jeter v. Glenn, 9 Rich., 374 — a general warranty includes a warranty against incumbrances. The Circuit Judge restricted the general warranty as including a warranty against incumbrances on the property covered by the deed to apply only as to the third part owned by the husband. It seems to us that the conclusion of the Circuit Judge in this particular is correct, under the circumstances of this cause; for he, Robert Singleton, had received a title from his two sons with the same general warranty, and as the title he conveyed to them was after, in point of time, their conveyance to him, he only conveyed as to their two-thirds such title as he got from them. This exception is overruled.
"III. That his Honor should have held that the evidence showed that the defendant, Esther Singleton, was a party to an actual fraud perpetrated upon the plaintiffs by Robert Singleton, in misleading them by misrepresentations as to the mortgage of A.E. Singleton, and that she could not for that reason set up said mortgage against the plaintiffs." Fraud is a word of serious import in the law; but when the word "actual" is placed in conjunction with it, is far more serious. We fail to find in the "Case" by the testimony one single word uttered by this defendant at the time the execution of the mutual deeds between Robert Singleton and the two plaintiffs on the 4th January, 1894, or before that time, which could have misled the plaintiffs. Not only was there absence of misrepresentation by her, but no act of hers except renouncing her dower on the deed of Robert Singleton to his two sons, the plaintiffs, was proved by the testimony to have been committed by her. This exception is overruled.
We now come to the consideration of defendant's grounds of appeal, which are as follows: "I. That his Honor erred in holding that Esther Singleton was in any way bound by the concealment and representations made by Robert Singleton in reference to the Holland mortgage, or *232 that she was estopped by these concealments and representations from setting up the said mortgage against the plaintiffs and from foreclosing said mortgage." We think the Circuit Judge went too far, in holding the defendant responsible for the concealment and representation made by Robert Singleton in regard to the Holland mortgage, as we trust we will be able to point out by a brief reference of the facts on this branch of the case. When Robert Singleton and his two sons, the plaintiffs, were discussing their business differences, the testimony fails to show that the defendant was present. It is true, the father told what was not true, when he assured them that the mortgage was paid. This was on the 4th day of January, 1894. At that date Robert Singleton did not disclose the fact that he had paid the mortgage debt in full and had taken an assignment of it to himself, and that in December, 1893, he had assigned said bond and mortgage to the defendant. She did not say the mortgage was paid. Never did the defendant utter one word at this settlement. She was not asked if she held by assignment such bond and mortgage. By the testimony, such a subject was never discussed in her hearing. How, then, could she by act, by word, or by silence, mislead any one? Such being the case, the Circuit Judge was in error, and this exception is sustained.
"2. That his Honor erred in holding that the assignment of the Holland mortgage to Esther Singleton was concealed by Robert Singleton from his sons, in order to induce them to execute the deed to him. 3. That his Honor erred in holding that Esther Singleton was present when the transaction took place between Robert Singleton and his sons, and that she knew what it was and that she was a party to the concealment or representations." The second exception is overruled. By the testimony, Robert Singleton intended to do what he did to perpetrate a bold fraud on his two sons. We sustain the third exception. There was no evidence that she was present, that she knew *233 what they were doing, or that she was a party to the concealment.
"4. That his Honor erred in directing the clerk of court to enter a cancellation on the record of the mortgage of A. E. Singleton to Woodward Holland." In discussing this exception, we propose to give our views of how the equities here involved affect parties to this action. It will be remembered that the master has found, and the Circuit Judge has concurred in that finding, that Robert Singleton used $83.70 of the money borrowed by his wife from Holland under the mortgage. Interest on this sum from 21st September, 1891, to 21st October, 1893, is $13.90, aggregating on 21st October, 1893, $97.60. The mortgage debt amounted on 25th October, 1893, to $843.20, one-third of $843.20 is $281.07. Add $97.60 to $281.07 amounts to $377.67. Deduct this $377.67 from the amount due 21st October, 1893, leaves a balance of $465.53. This amount of $465.53, with interest at eight per cent. per annum to 7th April, 1901 ($265.31), is $730.84, for which sum the defendant is entitled to have her mortgage foreclosed. It is admitted that Robert Singleton took the bond and mortgage on 21st October, 1893, which on that date amounted to $843.20; at that date he owned one-third of the real estate in controversy. Consequently, on that date, one-third of the bond and mortgage, amounting to $287.07, was paid by operation of law, leaving only $562.13 of the mortgage debt after deducting one-third thereof, as paid by operation of law. But in addition to this, it was found by the master and Circuit Judge that on 21st September, 1891, Robert Singleton had used $83.70 of the wife's money of the bond and mortgage. Therefore, on 21st October, 1893, this sum of $83.70, at eight per cent. interest, amounted to $97.60. By deducting this from $562.13, there will be left on 21st October, 1893, a balance of $465.53. This, with eight per cent. interest to 7th April, 1901, will amount to $730.84. Since the cases of C., C. A.R.R. ads. Agnew,
The fifth and sixth exceptions of defendant are as follows: "5. That his Honor erred in not holding that the mortgage of A.E. Singleton to Woodward Holland was assigned to Esther Singleton before the transactions between Robert Singleton and his sons, and was in no way affected by these transactions. 6. That his Honor erred in not ordering a foreclosure of said mortgage and a sale of the premises covered by said mortgage." These exceptions are sustained, having already been passed upon in effect.
It is the judgment of this Court, that the judgment of the Circuit Court, wherever the same is inconsistent with the views herein expressed, be reversed. It is further adjudged by this Court, that the defendant, Esther Singleton, is entitled to recover the sum of $730.64, and interest thereon from 7th April, 1901, at seven per cent. interest from that date, by a foreclosure of her mortgage on the lands described *237 in the complaint; but to such judgment in her favor is annexed the condition that if the plaintiffs give to her, or her attorneys, within the thirty days first ensuing after the remittitur reaches the Circuit Court, notice in writing that they propose to show in this action that her assignor and her intestate, Robert Singleton, used more than a one-third part of the estate of his wife, Mrs. A.E. Singleton, and shall afterwards by proofs establish such fact, that then and in that event the excess over his said one-third part of the personal estate of his deceased wife, shall be entered as a credit on the sum of $730.64 herein adjudged defendant as a part payment thereof, or in whole payment thereof, as the case may be, with interest on such excess over the said one-third part from the 15th December, 1893, at seven per cent. per annum. But if the plaintiffs refuse or neglect to take any such steps within the said thirty days, then and in that event the defendant may enforce her judgment according to law.