Tucker v. Tucker , 72 S.C. 295 ( 1905 )

August 2, 1905. The opinion of the Court was delivered by This is an action to foreclose two mortgages. The record contains the following statement:

"On May 24th, 1902, W.H. Tucker filed in the Court of Common Pleas for Anderson County, his complaint to foreclose two mortgages, as follows: A mortgage of twelve acres of land, executed by James Brown, sometimes known as James Bryant, to Mrs. C.E. Irby, on 1st January, 1886, and by her assigned to W.W. Smith, in writing, for valuable consideration, on 1st day of June, 1892, and by him assigned in writing, for valuable consideration, to W.H. Tucker, on 1st day of May, 1893; also, a mortgage executed by said James Brown, signing himself as James Bryant, to Sylvester Bleckley Company, on the same tract of land, on August 6th, 1891, for the sum of $66, with interest from date at eight per cent. per annum, which mortgage was, for value received by them, duly assigned, in writing, by Sylvester Bleckley Company, to W.H. Tucker, on 26th June, 1893; various payments are credited on the mortgages. That said James Brown died some time in October, 1901, and J.B. Tucker was duly appointed administrator of his estate, which consisted solely of this tract of land. W.H. Tucker began his action May 24, 1902. Mrs. C.E. Irby answered the complaint, setting up the defenses, 1st. That the said James H. Brown had only an interest in the land mortgaged, till the expiration of the lease known as the Wadsworth lease; that said lease expired in 1900; that plaintiff knew these facts when the assignment was made to him. 2d. Laches of plaintiff, and payment. 3d. The statute of limitations.

"The original deed from Sloan and Anderson, as executors of the estate of James Martin, and from R.G. Wallaceet al., trustees to Mrs. Beulah Brown, were not offered in evidence, but certified copies thereof were offered, and no notice to produce the original was given plaintiff or his attorneys, and no proof of loss was made, and no foundation laid to introduce secondary evidence of the contents.

"It is fair to state that defendant's attorneys think that it was understood at the reference that they could offer these certified copies without objection. But plaintiff's attorneys think the only agreement between counsel was, that plaintiff's attorneys would not require defendant's attorneys to prove the execution of their deeds.

"It was referred to the judge of probate, as special referee, to take the testimony and ascertain the amount due on the mortgage debts. Upon the evidence reported by him the case was heard by Hon. J.C. Klugh, Circuit Judge, who rendered a decree, filed June 10th, 1904, dismissing the complaint as to Mrs. C.E. Irby and W.W. Smith, and adjudging that the mortgages set forth in the complaint are no longer liens on the real estate described in the complaint. In due time plaintiff gave notice of his intention to appeal from said decree."

The facts are more fully set out in the decree of his Honor, the Circuit Judge, which, together with the exceptions, will be incorporated in the report of the case.

We will first consider these exceptions assigning error on the part of the Circuit Judge, in ruling that Mrs. C.E. Irby was not estopped from interposing the plea, that she acquired title to the land after the assignments of the mortgages. Mrs. Irby was a stranger to the mortgage executed by Brown to Sylvester Bleckley Co., which was assigned to the plaintiff. There was, therefore, nothing in that transaction to prevent her from purchasing the land.

This phase of the question does not call for further discussion, and we proceed to consider the effect of the transactions, in which she took part, before becoming the purchaser of the land. The testimony does not show that W.W. Smith did not have notice of the fact that Brown held only a leasehold estate, at the time Mrs. Irby assigned the note and mortgage to him; and he says: "I never expected to have any recourse on Mrs. Irby." He, certainly, was not misled by her.

We are furthermore satisfied that the plaintiff, at the time W.W. Smith assigned the note and mortgage to him, either had actual knowledge of the fact that Brown had only a leasehold estate, or that he had notice of such facts as were sufficient to put him on inquiry; which, if pursued with due diligence, would have led to knowledge of Brown's interest, and this was equivalent to notice. The assignment of the note and mortgage, and the purchase of the land by Mrs. Irby, were entirely separate and distinct transactions. There is no testimony tending to show that she assigned the note and mortgage, in contemplation of purchasing the land and thereby defeating the lien of the mortgage; nor that she failed to give notice of any existing right which she then possessed. The principle is well settled in this State, that the assignee of a note and mortgage cannot invoke the equitable doctrine of purchaser for valuable consideration without notice, when his assignor had notice. Patterson v. Rabb, 38 S.C. 138,17 S.E., 463; Westbury v. Simmons, 57 S.C. 467,35 S.E., 764. Nor did the assignment import a guaranty. In the case of Colburn v. Mathews, 1 Strob., 232 (affirmed in Jones v. Garlington, 44 S.C. 536,22 S.E., 731), the Court says: "That in the sale of an unnegotiable security, there is no implied warranty of either its goodness or money value, is too plain a proposition to require law to sustain it." It cannot be successfully contended that there was any fact stated in the assignment (which was in the usual form), calculated to mislead the assignee. As said by this Court, in the case of Westbury v. Simmons, 57 S.C. 467,480, 35 S.E., 764: "The form of the assignment by Rentz to Rion was such as is usually employed in transferring the title to non-negotiable instruments, and we see nothing upon the face thereof that could reasonably have been expected to mislead Simmons, he being presumed to know that the assignee of a non-negotiable chose in action takes it subject to the set-offs and defenses existing at the time of the assignment."

In 4 Cyc., 83, it is said: "By the mere fact of assignment, the assignor further guarantees, that he will not interfere with the chose thereafter, and if he does interfere, to the damage of the assignee, he renders himself liable to the assignee for any damage resulting from such interference." Conceding that the principle prevails in this State, it is not applicable to the facts of the case under consideration. If the action for foreclosure had been instituted while the leasehold estate was in existence, and Mrs. Irby had attempted to show that the mortgagor had but a leasehold estate, it might be that this would be regarded as an interference with the collection of the claim which she had assigned. She, however, does not contest the fact that the mortgagor had a leasehold estate, but sets up the plea that it has expired. The admission that the mortgagor had a leasehold estate at the time the note and mortgage were assigned, is not inconsistent with the defendant's contention that the leasehold estate, although existing at that time, has since expired and ceased to have any legal existence.

We will next consider those exceptions assigning error on the part of the Circuit Judge in ruling that the deeds therein mentioned were properly introduced in evidence. When the deeds were offered, the appellant's attorneys admitted the execution thereof, but objected to their introduction, on the ground that Mrs. Irby was estopped from setting up title to the land, or from disputing the title of the mortgagor. The views hereinbefore expressed in considering the other exceptions show that this ground is untenable.

The next question for consideration is whether the presiding Judge erred in his ruling as to the testimony of R.P. Martin and J.H. Elrod. The record shows that the following took place during the examination of R.P. Martin as a witness for the defendants: "Q. Did Harvey Waldrop ever own that land? Mr. Bonham objects to this question on the ground that it is incompetent for Mrs. Irby to introduce any testimony intended to attack the validity of the title of J.H. Brown, because her assignment of her note and mortgage on that land estops her from so doing. I object on the further ground that Waldrop's deed is the best evidence of his ownership of the land, and if it be claimed that that deed be lost, no sufficient foundation has been laid for the introduction of the contents of the lost deed. Taken subject to objection. A. Yes. Q. Who did Harvey Waldrop get that land from? Mr. Bonham objects on same grounds as stated above."

The appellant's attorneys objected to other testimony of this witness on similar grounds.

When J.H. Elrod was on the stand as a witness, like questions were propounded and similar objections interposed by the appellant's attorneys.

It will be observed that objection was made to the admissibility of the evidence on two grounds: 1. Because Mrs. Irby was estoped from setting up title to the land; and 2, because the deeds were the best evidence of title, and no sufficient foundation had been laid for the introduction of secondary evidence of the contents of the lost deeds. The first objection has already been disposed of.

The ruling of the Circuit Judge that sufficient foundation had been laid for the introduction of secondary evidence is not appealable unless there was an abuse of discretion, which does not exist in this case. Hobbs v. Beard, 43 S.C. 370, 21 S.E., 305.

Lastly, we will consider the exceptions raising the question, whether the Circuit Judge erred in ruling that the mortgagor had simply a leasehold interest in the land — the appellant contending "that the mortgagor, and those under whom he claimed, had continuous, open, notorious and adverse possession of the land under claim of title in fee simple, for more than twenty years, and had acquired title by prescription." The preponderance of the testimony shows, as contended at first by the appellant, that the mortgagor had only a leasehold estate in the land.

These conclusions practically dispose of all the questions involved under the appeal.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.