McCormick v. Bickerton ( 1916 )

Opinion by

Mr. Justice Mestrezat,

The questions in the case have been elaborately discussed in the charge and opinion of the learned trial judge and little, if anything, need be added to sustain the judgment. The defendant’s farm was sold by the sheriff on a judgment of $6,000.00 entered on a judgment note, secured by a mortgage of like amount on the real estate sold. The plaintiff purchased the property for the amount of taxes and costs. He subsequently issued an alias fieri facias to collect the judgment, and having levied on the personal property of defendant, the latter, applied to the court and the judgment was opened. The defendant pleaded payment. In his petition to open the judgment and on the trial, the defendant set up certain facts which he claimed worked an estoppel and prevented the collection of the judgment. The learned court in its opinion refusing a new trial states the facts as developed by the testimony and as found by the jury, as follows: “That on the day preceding the sale of the realty, defendant called on plaintiff concerning the sale of the land and the payment in satisfaction of the judgment. Defendant asked to stay the sale, and that he would pay something on account. Plaintiff refused, saying that he must have the money or the farm, but that if he bought the farm it would be payment and satisfaction of the bond, and that he (defendant) should call on his (plaintiff’s) attorney, Mr. Mercer, and that whatever he did would be satisfactory to th.e plaintiff. Defendant, accordingly, on the day following (the day of the sale) called upon Mr. Mercer, who, it was testified, told him substantially the same thing as plaintiff had told him, that the sale would proceed and that if he desired to redeem the farm after the sale he could do so, and that if plaintiff bought the farm and defendant failed to redeem it, that would be payment of the debt in question. Defendant testified that, relying on this promise of plaintiff and his attorney, he did not attend the sale, discontinued his efforts to raise the money, and notified his counsel by reason thereof not to attend the sale, that he had arrangements with a party (naming him) to raise the money, and that his attorney was to have been present at the sale and bid. His attorney testified that his client (defendant) notified him not to attend the sale, as he had made arrangements with the plaintiff which were satisfactory to him.”

We need not refer to the testimony from which the jury found the facts. It was conflicting and would have justified a different finding. The defendant relied,on his own testimony and corroborative facts disclosed by other testimony to sustain the alleged agreement or arrangement which the jury found and which is set up by the defendant as an estoppel. The plaintiff, his son, and attorney, contradicted material parts of the defendant’s testimony. The court, in its charge, directed the jury’s attention to all the testimony bearing on the question at issue and instructed them, inter alia, as follows: “I wish to say to you also that there must be corroboration of the defendant in this case; and if you find such corroboration in the testimony, in the facts related to you by other witnesses on both sides, this requirement of the law will have been complied with.”

The finding of the jury under these instructions relieves us from determining whether the defendant, in addition to his own testimony, was required to produce additional testimony or corroborative facts to warrant the court in submitting the case to the jury. They have found that the defendant’s story was corroborated. It is contended by the plaintiff, however, that there was no competent evidence of corroboration, and the testimony admitted for this purpose is the subject of some of the assignments of error. Those assignments cannot be sustained. This testimony clearly tended to corroborate the defendant’s evidence by showing the inherent probability of willingness on the part of the plaintiff to accept the farm in satisfaction of the debt, and that the defendant relied on some arrangement or agreement as a reason for discontinuing his efforts to find a purchaser, and for himself and his attorney remaining away from the sheriff’s sale which was manifestly to his detriment. It was competent and relevant to show that the plaintiff visited the farm at the time he made the loan and, therefore, knew its condition and its sufficiency as security for the loan which was secured by. the mortgage. A mortgagee, as is well known, usually requires the value of the property to be largely in excess of the loan, and hence the probability not only that the plaintiff was willing to take the farm in payment of the debt, but that the defendant by some arrangement would attempt to protect himself against the sacrifice by a sale of the mortgaged premises. The mortgage was not only referred to in the statement of claim as accompanying the bond, but was necessarily a part of the case under the issue submitted to the jury. The fact that the mortgage was not a lien on the premises at the time of the trial could be no objection to its admission when the case was submitted to the jury. If, as argued by the appellant’s counsel, the mortgage was offered as evidence of the value of the real estate, it did the appellant no harm, in view of the fact, as stated in the court’s opinion, that the value of the farm was first brought to the attention of the jury by appellant’s counsel in his address to the jury, and was replied to by defendant’s attorney.

The parts of the charge assigned for error when read with the context disclose no reversible error. When a charge taken as a whole is not erroneous or inadequate and presents the issues of fact fully to the jury, we will not reverse, although portions of it standing alone may fairly and justly be open to criticism.

Judgment affirmed.