34 S.C. 533 | S.C. | 1891
The opinion of the court was delivered by
The facts out of which the controversy in this case has arisen are substantially as follows: One Owen Alderman, the brother of the defendant herein, confessed ajudgment to him for the sum of upwards of five hundred dollars, which was duly entered in the proper office of Aiken County on the 12th of March, 1885, and a transcript thereof was duly filed in the proper office of Barnwell County, where the land which constitutes the subject matter of this litigation is located, on the 23rd of November, 1885. Upon the back of this transcript the following endorsement, without date, appears: “Received of the judgment debtor herein the full amount of the within judgment, with the cost and the interest thereon, which is full satisfaction of the same.” (Signed) “H. S. Alderman, per Jas. E. .Davis, plaintiff’s att’y.” On the 28th of December, 1885, the said Owen Alderman executed a mortgage on the land in question to the American Freehold Land Mortgage Company of London, to secure the payment of money then borrowed by him from said company; and upon default in the payment of the same, the said land on the 5th of December, 1887, was sold under the power contained in 0the said mortgage, and bought by W. G. Wheeler, the plaintiff herein.
On the 11th of June, 1888, the said H. S. Alderman, the de
Thereupon the plaintiff commenced this action to perpetually enjoin said sale. In his complaint, amongst other appropriate allegations, the plaintiff alleges that he has paid the whole'amount of the purchase money bid at the sale under the mortgage, and that the subsequent proceedings to open the judgment were intended as a fraud upon him, and will operate as such unless he obtains the relief demanded. The defendant answered, denying all fraud and collusion on his part and denying that the said Jas. E. Davis ever was his attorney, or ever had any authority to receive the money due upon said judgment, or to enter satisfaction thereon.
The testiomony adduced on the part of the plaintiff tends to show that the transcript of judgment was entered in Barnwell County, after the negotiations for the loan of the money by the mortgage 'company had been completed. But before the money was paid over to Owen Alderman, the agent of the company made a final search of the records, which revealed the fact that the transcript of judgment had been entered a short time before, whereupon this fact was brought to the attention of Owen Alderman, who said the judgment had been paid and should so appear upon the record, and the said Jas. E. Davis, one of the attorneys of record in'the said judgment, informed said agent that the judgment was actually paid and had already been marked satisfied upon the back of the transcript in the clerk’s office, and that he would also make the entry of satisfaction upon the abstract of judgments, which he subsequently did, to wit, on the 5th of April, 1886. The tes
The issues in the action having been referred to the master, he made his report, finding the facts substantially as we have stated them in the outset of this opinion, and finding as matter of fact “that there was no fraud or collusion on the part of PI. S. Aider-man, defendant herein;” he found as matter of law that the plaintiff is not entitled to any equitable relief upon the ground of fraud; and “that plaintiff is not entitled to equitable interposition by"injunction, on the ground that the judgment has been satisfied.” Upon this report and the exceptions thereto filed by the plaintiff, the case was heard by his honor, Judge Hudson, who held “that while there may have been no collusion on the part of the Aldermans, or corrupt purpose in their transactions, at the same time the loan was made to Owen Alderman upon the faith of the statement of the said Owen Alderman and James E. Davis, who acted as attorney for both parties in obtaining the judgment; and while the satisfaction made and acknowledged by said James E. Davis on the records of the county may be incorrect, its effect was to induce the lender of the money to make the loan, and W. G. Wheeler, the plaintiff, to become
Judgment was accordingly rendered perpetually enjoining the enforcement of said judgment against the land in question. From this judgment defendant appeals upon the several grounds set out in the record, which impute error to the Circuit Judge in holding : 1st. That the case made by the plaintiff entitled him to “equitable interference.” 2nd. That Davis acted as attorney for both parties in obtaining the judgment, and that H. S. Aider-man was bound by the statements made by Davis and Owen Alderman. 3rd. That while the satisfaction entered upon the record of the judgment may be incorrect, yet as it induced plaintiff to become the purchaser of the land, the defendant is thereby estopped by said entry, although said Davis acted without authority and without receiving the money. 4th. In perpetually enjoining the enforcement of the execution against the land in question.
While it is quite true that there is no direct evidence that Davis was ever employed as an attorney by H. S. Alderman, yet the fact of his having so acted, and that H. S. Alderman is now claiming the benefit of his act, together with other circumstances presently to be alluded to, is sufficient in our judgment to establish that relation between Davis and H. S. Alderman. If the confession of judgment had never been taken, or if, after it was taken in the County of Aiken, the transcript thereof had never been filed in Barnwell County, it is very obvious that H. S. Alderman would have had no pretence of a lien upon the plaintiff’s land, and hence if he has any such lien, he must claim it through the judgment which was prepared by Davis, acting as his attorney ; and he cannot now claim the benefit, without assuming the corresponding burden, at least so far as the rights of subsequent innocent purchasers are concerned. As is said in 1 Pars. Cont., *51 : “An adoption of the agency in part, adopts it in the whole, because a principal is not permitted to accept and confirm so much of a contract made by one purporting to be his agent, as he shall think beneficial to himself and reject the remainder.” Upon this principle H. S. Alderman cannot be permitted to claim the benefit of the act done by Davis as his attorney, and at the same time repudiate his attorneyship.
In addition to this, it appears from the defendant’s own testimony that when the money was loaned for which the judgment was taken, it was on the promise of the borrower to secure or make safe the lender, and that the judgment was voluntarily confessed by Owen Alderman to H. S. Alderman for that purpose, and II. S. Alderman was told by Owen that he had confessed the judgment in accordance with his promise. It would seem, therefore, that H. S. Alderman, when he loaned the money to his brother Owen, relied upon him to secure the same, and when Owen employed Davis to take the confession, for the purpose of carrying out his promise, he was really acting for the benefit of H. S. Alderman, who cannot now be permitted to avail himself of such benefit and at the same time repudiate the agency through which it was secured. It seems to us, therefore, that Davis must
The fourth ground is too general in its. character to call for further notice than what it has incidentally received in considering the other grounds.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.