Hall v. Hall , 45 S.C. 33 ( 1895 )

The opinion of the Court was delivered by

Mr. Justice Pope.

This action was originally between the present plaintiff and Harrison H. Hall as defendant. In this plight, it came before this Court, when our former judgment was rendered, awarding plaintiff a new trial. And with these same parties, it came on for a hearing before his Honor, Judge Aldrich, at the June, 1894, term of Court of Common Pleas for Kershaw County, in this State. After an appeal was taken from Judge Aldrich’s decree, the defendant, Harrison H. Hall, departed this life, leaving a will, of which W. W. Hall was nominated and qualified as executor. On the 24th day of April, 1895, this Court passed an order, substituting the said W. W. Hall, as such executor, the party defendant.

A full history of the issues involved in this action is set forth in the opinion of Mr. Justice McGowan in Hall v. Hall, 41 S. C., 163. By that judgment the cause was remanded to the Circuit Court for a new trial, at which the defendant was required to make it plain that the conveyance, made to him in the year 1880 by the plaintiff, Uouisa Hall, for the 484 acres of land, was fairly and voluntarily made upon a separate and independent contract of sale, disconnected from the mortgage contract; and, also, that the plaintiff knew the character and effect of the paper she signed, and that she signed it voluntarily and intelligently. Under these specific directions, the whole cause was reheard by Judge Aldrich, who had all the witnesses before him in giving their testimony, except Mrs. Hall,'the plaintiff, whose testimony was taken out of Court. After this hearing, Judge Aldrich rendered his decree, wherein he found every issue in favor of the defendant, and dismissed the complaint. The plaintiff is now before this Court a second time, on five exceptions, as follows:

“1. His Honor erred in holding that the defendant had the right to calculate interest on the mortgage debt at the rate of eighteen per cent, up to the time of the making of the deed, when the mortgage called for. that rate of interest only up to the maturity of the instalments of the debt, and no longer; whereas, he should have held that the defendant, in calculating such rate of interest after maturity of such instalment, took advantage of plaintiff, an aged and illiterate woman — such advantage being a fraud perpetrated upon her, and should have vitiated the deed.

“2. That his Honor should have held, that whether such calculation of interest was a fraud or a mistake, it enured to the benefit of the mortgagee, placed the mortgagor at a disadvantage, and should have vitiated the deed.

“3. Because his Honor erred in concluding that a calculation of the interest at eighteen per cent, would aggregate the amount or nearly the amount of the consideration expressed in the deed. Whereas, instead, his Honor should have calculated that one or more payments must have been made upon the debt, because a calculation of eighteen per cent, interest upon the original debt, to the making of the deed, would be more, and that a calculation of the interest at eighteen per cent, on the instalments of the debt until they became due, and seven per cent, afterwards, would aggregate less than the consideration expressed in the deed, and that, therefore, it is reasonable to conclude that the eighteen per cent, must have been calculated to the time of making the deed, and that one or more payments'must have been made upon the debt, as testified by the plaintiff and others.

“4. That his Honor erred in holding that the purchase by the defendant from the plaintiff of the land in dispute was an honest, open, and fair transaction, that the consideration was reasonable, proper, and fair; as conclusion of law, that defendant’s title is valid. Whereas he should have held that the defendant took advantage of plaintiff, an aged and illiterate woman, used his position as mortgagee to influence her, that no new consideration passed between them, no price agreed upon for the land, that the transaction was not disconnected from the mortgage, that plaintiff did not know the difference between a mortgage and an absolute conveyance, and should have concluded that said deed was null and void.

“5. That his Honor erred in sustaining the plea interposed by the defendant, that the plaintiff, not having brought her action within six years from the discovery of the fraud, is barred. Whereas he should have held, that Judge Witherspoon having failed on' the former trial of the cause to sustain their plea, and defendant not having excepted thereto, he is now debarred from interposing it.”

So far as the first exception is concerned, we fail to notice in the decree that the Circuit Judge held that the defendant had the right to calculate the interest at eighteen per cent, from date of debt to date of deed. The Circuit Judge does in his decree refer to what was a common practice amongst our people, to allow the same interest after maturity as was stipulated in their notes they should bear up to maturity; and that this practice prevailed until some contract was brought before the Supreme Court which held that, as a contract in writing must be governed by its terms, the interest in excess of the legal rate was only contracted to be paid up to maturity, unless the obligation provided by its terms for an extension of such interest in excess of the legal rate beyond the maturity of the note. This Court never said parties to such notes may not have intended differently, and, therefore, honestly carried out their intentions. So the Circuit Judge here, in discussing the question whether the fact that the interest beyond — in excess of — legal interest, after the instalments of the bond here in question had matured, was of itself a badge of fraud, held it was not, and, in the course of his remarks, said: “The parties had the right to contract as they saw proper, and, in the absence of all proof to the contrary, and the custom as it existed years ago, when this transaction took place, it seems to me to be only a just and natural conclusion to assume that the parties intended to do just what they did do, calculate the interest at eighteen per cent. There is no fraud here.” We fail to see, therefore, that the decree of the Circuit Judge is liable to the exception of the appellant, as he has chosen to phrase it. Now, as to the other allegation in the exception, imputing error to the Circuit Judge in failing to find that advantage was taken of this good old lady by the defendant’s testatrix. This is a question of fact, and the record discloses an abundance of testimony upon which the Circuit Judge may have depended in reaching his conclusion, and under our well-settled rule in such cases, we will not overrule his conclusions as to facts. We may be pardoned for saying that this is the second Circuit Judge who has heard this testimony, both of whom were alike impressed that the preponderance of the testimony was with the defendant. Notwithstanding the concurrence of the two Circuit Judges on this point, we have given the testimony a very close study, so that full justice might be done the plaintiff, who is now more than fourscore years of age, and also a widow, but we cannot see our way clear to upsetting this transaction on the point here raised.

1 As to the second exception, it and the third will be considered together. It is difficult to reproduce the calculation of interest so as to reach the amount named in the deed as its consideration. If eighteen per cent, interest was charged upon the $349.70 from its date, 15th January, 1877, to date of deed, 12th November, 1880, it would amount to about $609.47, and as the consideration named in the deed is $584.10, this would make the debt about $25.37 in excess of the consideration of the deed. If, however, we apply the rule fixed by law, by calculating interest on each instalment from date to maturity at eighteen per cent., and thereafter at seven per cent, up to date of deed, we find that the consideration named in the deed — $584.10— is about $76.60 in excess of this calculation of principal and interest — $507.50. Therefore, relying upon probabilities, the first mode, as it is suggested by the Circuit Judge, was that adopted by the parties, and it may be that the small payment testified to bj' the good plaintiff, of $19, may, when interest is allowed, account for the $25.37. It must be apparent that a distance of fifteen years nearly from the time these witnesses testified as to what occurred in November, 1880, would necessitate some inaccuracy as to the details of a settlement. This might easily have been corrected by the parties themselves, if the original bond had been preserved, or a memorandum of the calculations of debt and interest had been preserved. Such differences, however, after this interval, fifteen years, cannot be made to play such an important function as that of convicting a reputable citizen of willful or even legal fraud.

2 It is due the bar that we should say that these exceptions are objectionable in form — they are really argumentative, and if this Court would enforce its rules strictly, such exceptions would not be considered. We have not enforced the rule, because its enforcement was not demanded by the respondent. Het the exceptions be overruled.

3 So far-as the fourth exception is concerned, it really relates to a finding of fact by the Circuit Judge. We are not prepared, by any means, to say this conclusion of the Circuit Judge is without any testimony to support it, or is opposed to the overwhelming weight of the testimony. Therefore, under our rule in such cases, we will not disturb the findings of the Circuit Judge.

Hastly, we will dispose of the fifth exception. When the Circuit Judge decided that the defendant, with the burden of proof-upon him, had successfully maintained all the requirements of this Court in its judgment granting a new trial of all the issues without prejudice, there was no necessity for his having passed upon the plea of the statute of limitations, to wit: that the plaintiff had full knowledge of all the facts she claims will establish fraud for more than six years before she instituted her action to set aside the deed she had made on the ground of fraud practised upon her by defendant’s testator. If the facts constituting frauds did not exist, what use was there for any plea of the statute of limitations? However, the Circuit Judge did pass upon this plea as affected by the facts proved, and sustained such plea. His conclusion is an abstraction, so far as this case is concerned, but we cannot say that, as an abstract proposition of law, it is incorrect.

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