Boozer v. Gunter

120 S.E. 749, 127 S.C. 141, 1923 S.C. LEXIS 299

• Court: Supreme Court of South Carolina
• Decided: December 18, 1923
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

The respondent, T. J. Boozer, instituted this action in the Court of Common Pleas for Lexington County, March, 1921, against the appellants, Jerome R. Gunter et al., to foreclose a purchase-money mortgage executed by appellant, Gunter, on the 18th day of January, 1918, which mortgage, covered the tract of land mentioned and described in the complaint and set out in the case. The defendant appellant filed an answer in which he sets up a partial failure of consideration and fraud, and asks for a rescission of the contract or an abatement of the purchase price. The case was heard at the November, 1922, term of the Court of Common Pleas for Lexington County, by his Honor, Judge W. H. Townsend, who found that the plaintiff respondent was entitled to a decree of foreclosure for the unpaid balance due upon the notes and mortgage foreclosed.

When the decree of his Honor, Judge Townsend, was filed, the appellant by 15 exceptions alleged error. The first exception complains of error as to the amount found due by his Honor on the notes and mortgage and judgment given therefor. The other exceptions practically impute error on the part of his Honor in holding that the appellant was not entitled to a cancellation of the mortgage or to an abatement of $2,000 on the purchase price.

Let the decree of Judge Townsend be reported.

The appellant is confronted by the proposition that it is incumbent on him to show that the finding of the Circuit Judge is contrary to the weight of the evidence, and, failing to do this, the judgment of the, Circuit Court should be affirmed.

As to the amount found due by his Honor, his finding is supported by an abundance of evidence. His Honor is correct in holding that the plat of Schoenberg in evidence, as Exhibits 8 and 10, does not accurately locate the mill site, dam, and pond. We think by the plat, however, that the dam site, and a small portion of the pond is on the land conveyed to the Blaines; but we do not think that the appellant is entitled to an abatement in this suit.

There, is no evidence showing that the dam site is on a rocky shoal, with special value as a dam site. There is very little land covered by the Blaine plat that appellant claims, and we fail to see how his charge, of fraud, deceit, and damage can be sustained.

The appellant has not been ousted by a paramount title in another (Moore v. Beard, 91 S. C., 496; 74 S. E., 1062, and cases cited therein), and we are of the opinion that .he has failed to‘ show that the findings of Judge Townsend were against the weight of the testimony.

All exceptions are overruled, and judgment affirmed.

Mr. Chiee Justice Gary and Mr. Justice Fraser concur. Messrs. Justices Cothran and Marion dissent.