Furse & Lawton v. Brant

January 18, 1919. The opinion of the Court was delivered by Action to foreclose a mortgage. The answer denied the execution of it; alleged there was no consideration for it; that the defendant was incapable, by reason of sickness, to enter into the contract; that the instrument was procured by the hand of the mortgagees. The master reported against all the defenses, and recommended that the prayer of the complaint should be granted. The Circuit Court confirmed the master, but his order is not printed in the "case."

The seven exceptions make but two issues: (1) That the cause ought to have been submitted to a jury; and (2) that the defenses were proven.

The defendant did not proceed under the rule of Court to secure a trial by jury. That rule, therefore, is out of the question. When the plaintiff moved for an order of reference, the defendant resisted the granting of it, and then demanded a trial by jury. The cause is in equity, and the Court was, of course, under no compulsion to order a jury trial. There is no need to cite authority for that, but seeErskine v. Erskine, 107 S.C. 233, 92 S.E. 465.

The cause cited by the appellant (Krentzlin v. Barron 109, 208, 96 S.E. 115) has no relevancy to the issue.

The testimony as to the merits is very brief. Only the defendant and her daughter testified to sustain the defenses set up.

The burden was on the defendant to show that the conclusion of the master and the Circuit Court was wrong. We have no doubt about the correctness of the judgment of the Court; the testimony plainly sustains it.

The decree of the Circuit Court is affirmed.