Ex Parte Felder

As I do not concur in the opinion of Mr. Justice Jones, I will state briefly the reasons for my dissent. The reasons set forth by his Honor, Judge Buchanan, in his decree, which will be incorporated in the report of the case, sustain his conclusion. Although the agreement between the bank and the Felder heirs, which is set out in the leading opinion, is inartistically drawn, and its provisions are inconsistent, it nevertheless plainly appears it was the intention of the parties that the bank should only receive $8,000 of the proceeds arising from the sale of the mortgaged property. It must be remembered that the other creditors were not entitled, by law, to any portion of the amount for which the property was sold in excess of the $8,000, as it did not bring enough to satisfy the amount adjudged to be due on the mortgage. The controversy is solely between the bank and the heirs. It is true, there are expressions in the agreement tending to show that the fund in excess of the $8,000 was to be turned into the general fund and distributed among the creditors, and that the heirs were to receive the pro rata, share which the bank would have received on the balance due upon its judgment in foreclosure, but they are inconsistent with other expressions in the agreement. If such was the intention of the parties, then why did not the bank turn the excess into the general fund? The failure to do so shows that the bank did not place such construction on the agreement, for if it did, it was guilty of a violation of duty.

In the case of Williamson, v. Association, 54 S.C. 582, the Court says: "It is a well settled principle that when the construction to be given a contract is rendered doubtful by the language thereof, the interpretation of the contract by the parties themselves is entitled to great weight" — citingChicago, v. Sheldon, 9 Wall., 50; R.R. Co., v. Trimble, 10 Wall, 367; Steinbach, v. Stewart, 11 Wall, 566; Lowber, v.Bangs, 2 Wall, 728. Furthermore, if such construction is to be placed on the agreement, it would not show that the bank is entitled to more than the $8,000.

But we do not think either of the parties to the agreement intended to create a trust fund for the payment of the unsecured creditors. Such a provision might have destroyed entirely the rights of the heirs, without any benefit to the bank; for, suppose the mortgaged property had been sold for the exact amount adjudged to be due the bank, there would not have remained a balance upon which the heirs could have received a single cent as their pro rata, share in the distribution of the excess of $8,000. Or suppose the mortgaged property had been sold for enough, not only to satisfy the amount adjudged to be due under the mortgage, but to pay the unsecured creditors in full, they still would not have received a distributive share. The heirs certainly did not intend to enter into an agreement by which the larger the sum for which the property should be sold, the more effectually their rights might be destroyed — an agreement by which their distributive share might be diminished, in proportion to the increase, in the price of the property. It seems to me that the heirs have the equity on their side, and that the construction placed upon the agreement by the majority of the Court enables the bank to retain possession of a larger sum than was contemplated.

There is another reason why I cannot concur in the opinion of Mr. Justice Jones: If the heirs are to get the prorata, portion which the bank would have received on the balance of the judgment in foreclosure in excess of the valuation fixed therein, to wit: $8,000, the dividend would be declared, not on the difference between $8,000 and the amount adjudged to be due, but on the balance remaining after crediting the judgment in foreclosure with the amount for which the property was sold. Wheat, v. Dingle, 32 S.C. 473;Ragsdale, v. Bank, 45 S.C. 575.

For the foregoing reasons I dissent.