Heath v. Blake , 28 S.C. 406 ( 1888 )

The opinion of the court was delivered by

Mr. Chief Justice Simpson.

The complaint in this case was filed to foreclose a mortgage on real estate, executed by one Joshua Blake, the husband of the defendant, Fannie J. B. Blake, and the father of the other defendants, to secure a certain sealed note for $900, payable to D. R. S. Blake by the said Joshua Blake, and bearing date February 24, 1878. Both D. R. S. Blake and Joshua Blake, creditor and debtor, had died, and the action was brought by plaintiff, respondent, administrator of D. R. S. Blake, against the defendants, heirs at law of the said Joshua, upon whose estate no administration had been taken out.

The complaint alleged that after the death of the said Joshua the note had been altered by his widow, Fannie J. B. Blake, by the insertion of a different rate of interest, and by signing said note, and altering it so that it would read, “we,” instead of “I,” and that she had signed her name at the bottom of the mortgage in the presence of a witness who also signed it as witness; but these alterations were not made with any fraudulent intent, but for further indulgence. It also alleged that the note was entitled to certain credits, that the mortgage had been duly recorded, and that the condition thereof had been broken, and a foreclosure, &c., was demanded.

Fannie J. B. Blake, the widow, answered separately. Two minor defendants answered by guardian ad litem; and five of the adult defendants answered together. The other defendants made default. The widow admitted the allegations in the complaint generally, including the statement in reference to the alterations of the note and mortgage, but she claimed that the note was entitled to other credits than those mentioned, and she further claimed that certain of the credits were paid by her after the death of her husband, not, however, as payments, but as purchaser pro tanto of so much of the debt. She further claimed that she was the assignee of a certain judgment in favor of one Culp against her husband obtained in June, 1878, for $130.97, with interest from June 18, 1878, with $26.75, costs; and also of a mortgage on the real estate made by her husband in January, 1880, to Whitesides & Marion, to secure $216.35, with interest from January 1, 1880, &c., and she claimed that she should receive payment for the credits mentioned, for the Culp judgment, and the Whitesides & Marion mortgage, alleging priority in favor of the Culp judgment over the plaintiff’s mortgage. She also claimed dower. The minor defendants put in a formal answer; and the adults, admitting the allegations as to the death of D. R. S. Blake and Joshua Blake, creditor and debtor, denied each and every allegation contained in the other paragraphs of complaint as to the execution of the note, mortgage, &c.

The case was referred to the clerk of the court by his honor, Judge Fraser, to take the testimony bearing upon issues raised and to report the same to the next term of the court. This report come to a hearing before his honor, Judge Aldrich, who held that the alteration in the note had vitiated it, although no fraud was intended, but that the mortgage could still be enforced. He declined to allow a certain credit of $200, claimed by the defendants ; and he refused the dower, saying that “the widow could not get the benefit of the mortgage and her dower also.” He decreed nothing as to the widow’s claim to be paid the amounts entered on the note by her after the death of her husband; nor did he adjudge anything as to the Culp judgment or the White-sides & Marion mortgage, and he ordered a reference to inquire and report the amount due on the mortgage according to the principles of his decree, directing a decretal order to he prepared comprising the foreclosing of the mortgage, to be forwarded to him afterwards.

From this decree the answering defendants appealed, alleging error in the Circuit Judge because he had not vacated both mortgage and note on account of the alterations; that he erred in not allowing the credit of the $200, claimed; in not allowing the widow dower unconditionally; that he had not found and inserted in his decree the facts on which it was based, and that the facts bearing on all of the issues made should have been found, as well as the law on all of said issues.

At the next term of the court, the referee under the order of Judge Aldrich having reported the amount due to the plaintiff, to wit, the sum of $989.82, June 30, 1887, and the amounts due the widow on the Culp judgment $237.31, and the Whitesides & Marion mortgage $251.87, the case came up before his honor, Judge Norton, when the defendants made a motion for a new trial, using as a basis the exceptions to the decree of Judge Aldrich on appeal to this court and especially that Judge Aldrich had not set out the facts, and that he had not passed upon all of the issues involved. This motion was refused, his honor holding that as to the want of exceptions, he could not review the decision of Judge Aldrich as to the errors alleged therein, and that there was no sufficient ground for a new trial as to the others; and, holding that all of the issues involved had been disposed of by Judge Aldrich, he proceeded to decree a foreclosure, and the plaintiff in open court having consented to the dower of the widow, he allowed this claim, to be first set off, or paid in the event it could not be set off, the remaining proceeds of the sale to be applied to the costs of the plaintiff and minor defendants, then to the payment of plaintiff’s claim $989.82, then the surplus, if any, to be deposited with the clerk subject to the order of the court, and to be “held until the adjustment of the rights of the defendants among themselves, and also of any lienors who may come in under rule 54 of the Circuit Court, and that any of the defendants should have leave to apply immediately for an order directing such adjustment.”

From this decree the defendants appealed upon several exceptions, suggesting as error that his honor had failed to state correctly the issues raised in the case by the answers of the minor and adult defendants, and especially as to the widow’s claim for dower and her rights as a judgment and mortgage creditor of the estate, said defendants contending that these claims were denied by them, and therefore should have been adjudicated.

The case is complicated and not very clearly set out in the prepared “Case,” but the above statement embodies the facts as we have been able to ascertain them; sufficiently so, we hope, to make the opinion intelligible.

Now, as to the decree of his honor, Judge Aldrich. We think that his honor was correct in holding the note void because of the alterations mentioned. These alterations were material, especially as to the increased interest, ten per cent, to be paid annually being inserted in the body of the note, when the original bore only 7 per cent. (Vaughan v. Fowler, 14 S. C., 355); but we concur with his honor that this alteration of the note did not avoid the mortgage, and that notwithstanding such alteration said mortgage could still be enforced. We think the principle laid down in Gillett v. Powell, Speer Eq., 144; Plyler v. Elliott, 19 S. C., 268; and Smith v. Smith, 27 Id., 166, sustains this view. Nor did the signing of the name of Mrs. Blake at the bottom of the mortgage with the name of the witness thereto, affect the mortgage, as in our opinion this was no material alteration of the mortgage itself. It was not in the body of the mortgage, nor did it in any way purport to add to or change the obligation of the mortgagor or the rights of the mortgagee.

We think his honor erred in denying dower to the widow, but this error seems to have been entirely cured in the decree of Judge Norton when the dower was allowed by consent of the plaintiff made in open court. And the defendants having made the denial by Judge Aldrich one of the grounds of appeal therefrom, and the dower having been allowed by Judge Norton, we cannot see what the defendants have to complain of, in .regard thereto, now. We think his honor erred in overruling the defendants’ claim for the credit of the $200 mentioned. The wife of D. R. S. Blake, the payee of the note, testified that said credit entered thereon was in the handwriting of her husband, and a son of the debtor testified that said D. R. S. Blake entered said credit in his presence, after examining the receipt showing the payment which he said was all right. And although the credit is entered on the note as of June 17, 1877, some time before the note was given, yet being in the handwriting of the creditor as testified to by his widow, this was an acknowledgment that in estimating the amount due at the time of the execution of the note, which was made up of several matters, this amount was overlooked. This error, however, may be remedied, as will be seen below, without the necessity of a new trial.

We do not think that the answers of the defendants raised any issue with the plaintiff as to the claim of Mrs. F. J. B. Blake to have her payments on the note declared a purchase fro tanto, nor as to her right to set up the Culp judgment and Whitesides & Marion mortgage paid out of the proceeds of the land. These were matters with which the plaintiff had no concern, and there was no reason why he should contest them, nor why he should be delayed thereby in enforcing his mortgage. Mrs. Blake did raise an issue with the plaintiff as to the priority of the Culp judgment over his mortgage, but there was no testimony offered on that point, and therefore no decree thereon demanded. It is contended, however, that as to these matters claimed by the widow, the other defendants were interested. This may be so, but they were not raised distinctly in their answers, nor as far as we can see was Judge Aldrich called upon to adjudicate the opposing rights of the defendants. If, however, there was error here, that has been cured by the decree of Judge Norton, who directs the proceeds of sale after payment of the dower and certain costs to be deposited with the clerk with the right of the defendants, any or all, to take steps to have whatever rights they may have with reference to each other fully adjudged before the money is distributed.

We see no necessity, therefore, that either of the decrees should be reversed in full and the case be remanded for a trial de novo. The only error which demands correction is the rejection of the credit of the $200 on the debt, and this can be remedied by a modification of the decree of Judge Norton, in so far as to allow this credit, with interest thereon from November 19, 1877, to the report of the referee, June 17, 1887, which would amount to $334.82, which deducted from $989.82, plaintiff’s debt as allowed by the referee and the decree, would leave $655.

It is the judgment of this court, that the decree of Judge Norton below be modified as above, reducing plaintiff’s demand to the sum of $655, and that in all other respects it be affirmed, and that for the reasons given hereinabove the decree of Judge Aldrich be reversed and affirmed, fro forma, in the particulars mentioned.

Mr. Justice McGowan concurred.