47 S.C. 347 | S.C. | 1896
Lead Opinion
The opinion of the Court was delivered by
The plaintiffs brought this action for the foreclosure of a mortgage on real estate, which they alleged had been executed by the defendant. This allegation was distinctly denied in the answer, and the sole question made before the Circuit Court was whether the plaintiff had established, by the preponderance of the evidence, the execution of the mortgage. The case was heard below by his Honor, Judge Brnest Gary, upon testimony taken and reported by the master, all of which is incorporated in the “Case” as prepared for argument here. The Circuit Judge rendered his decree, in which he found as a fact that the defendant did not execute the mortgage sought to be foreclosed, and rendered judgment that the complaint be dismissed. From this judgment the plaintiffs have appealed Upon the several grounds set out in the record; and we think it due to all the parties concerned that the decree of the Circuit Court, together with the grounds of appeal, should be incorporated in the report of the case.
If, therefore, the long established and well settled rule is to be applied to this case, it is quite clear that the judgment below must be affirmed, for there certainly was some (and, as we think, a good deal) testimony to sustain the conclusion reached by the Circuit Judge; and we are far from satisfied that his conclusion is manifestly against the overwhelming weight of the testimony. It must be remembered that the burden of proof was upon the plaintiffs to establish, by the preponderance of the evidence, the fact that the defendant did execute the mortgage in question — not upon the defendant to show that her name as signed to the mortgage was a forgery. The mortgage, on its face, purports to have been executed in the presence of two witnesses — -R. E. L. Kirven and T. E. Kirven — whose names appear thereon as subscribing witnesses; but while one of these persons — R. E. K. Kirven — does testify that the mortgage was executed by the defendant in his presence and in the presence of T. E. Kirven, whose name appears as the other subscribing witness, yet the said T. E. Kirven denies, in his testimony, that he ever witnessed the execution of the mortgage, and that his name, appearing thereon as a subscribing witness, was written by him; and his testimony is fully corroborated by the 'testimony of the defendant, who denies that she ever executed the mortgage, and that her name signed thereto was written by her, or by any one by her directions or by her authority. It is true that there was testimony on the part of the plaintiffs that the said T. E. Kirven had admitted that he had witnessed the execution of the mortgage in question, but that witness, when subsequently put upon the stand, explained this by saying that when asked if he had witnessed the execution of the mortgage, he understood the inquiry to refer to a mortgage given to the People’s Bank of Darlington by the defendant, which he had, in fact, witnessed; and, therefore, he admitted that he had witnessed the execution of the mortgage — meaning
On the other hand, the plaintiffs, in addition to the positive testimony of R. B. R. Kirven as to the execution of the mortgage, and the testimony of the experts above referred to, relied also, amongst other circumstances, upon the efforts made to compromise after threats of suit had been made, which, it is claimed, amounted to an admission of defendant’s liability. But it seems to us that, in addition
We are pleased to be able to endorse fully the very appropriate and just remarks made by the Circuit Judge, relieving the plaintiffs'from any imputation whatever of any improper conduct throughout this whole transaction.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.
Concurrence Opinion
I concur in the result, because the preponderance of the evidence is not against the conclusions of fact by the Circuit Judge. I think that sec. 4, art. 5, of the present Constitution, was intended to sweep away the rule heretofore prevailing, and announced in the opinion of the Chief Justice, viz: that the conclusion of a Circuit Judge on a question of fact will be affirmed, unless without any testimony to sustain it, or unless it is manifestly opposed to the overwhelming weight of the evidence. This rule is inimical to the search for truth, which is, and should be, the duty of every Court. In its practical operation it makes the judgment of a Circuit Judge on a question of fact final, notwithstanding the jurisdiction and duty of this Court to review his conclusions of fact. Of course, every appellant, on an issue of fact in chancery, has the burden of showing error in the Circuit Judge in his conclusion thereon, but he discharges this burden when he
Concurrence Opinion
My reasons for concurring in the result only, are expressed by me in the case of Land Mortgage Co. v. Faulkner, hereinbefore mentioned.