The opinion of the court was delivered by
McIver, A. J.
The object of this action was to subject a certain tract of land to the payment of judgments held by the plaintiff against the defendant, Philpot, and, for this purpose, to set aside a sale of the same, under a judgment of foreclosure, to the defendant, Lawrence, and a deed made by him to his co-defendant, Gravely.
The facts, out of which the controversy grew, are, in brief, as follows: The defendant, Philpot, bought a tract of land from one ~W. G. Field, paying part cash, and giving his note, secured by a mortgage of the premises, for the balance. The allegation on the part of the defendants is, that Philpot borrowed the money from Lawrence with which to pay the note, and paid it to Field, with the understanding that when the note was fully paid to Field, it and the mortgage should be assigned to Lawrence, as a security for the money advanced by him. Accordingly, when Field received the balance due him on the note, the [122]*122mortgage, with the note, was assigned by Field to Lawrence. An action was then brought by Lawrence, as assignee of the mortgage, to foreclose the same, under which Lawrence bid off the land, and, subsequently, conveyed the same to the defendant, Gravely. The plaintiff, on the other hand, contends that the arrangement for the transfer of the mortgage to Lawrence was fraudulent and designed to defeat the creditors of Philpot, some of’ whom had reduced their claims to judgment, and that there was no agreement on the part of Field to assign the mortgage before the debt, secured by it, was paid, and, consequently, when the note was paid by Philpot, the mortgage was satisfied, and the assignment of it was a nullity. The case was heard by Judge Thomson at March Term, 1880, and, on May 3d thereafter, his decision was filed, in which he held that the evidence showed that there was no agreement for the assignment of the mortgage before the debt, secured by it, was paid, and, therefore, that the assignment was a nullity, and that the purchaser under the suit, for foreclosure took nothing. He, therefore, ordered the land sold, and the proceeds disposed of as the court might thereafter order. Within ten days after this decision was filed, the defendants, Lawrence and Gravely, gave notice that, at the next term of the Court of Common Pleas, they would move for a new trial, upon the ground of newly-discovered evidence, and, also, filed a petition, accompanied with affidavits, setting forth fully the grounds of their motion. The newly-discovered evidence relied upon is in the form of a receipt, which reads as follows:
“Deceived of E. H. Lawrence four hundred dollars, to,be credited on note I hold against I. H. Philpot. When the said Lawrence shall raise said note I agree to assign said mortgage to him.
(Signed) “ W. G. Field,
“January 12th, 1876.”
At the next term of the court the motion for a new trial was heard by Judge Mackey and granted, whereupon the plaintiff appealed on various grounds, which will be considered in their order:
[123]*1231. Because “one Circuit judge has no authority to reverse and nullify the decision or decree of another Circuit judge, as • was done by the order granting a new trial in this instance.”
It is quite manifest that Judge Mackey, in' granting the motion for a new trial, does not undertake to reverse or nullify the decision or decree of Judge Thomson. The latter rested his decision solely upon the ground that the evidence, as presented to him, satisfied his mind that there was no agreement to assign the mortgage until after the debt, secured by it, had been paid by the mortgagor, and, therefore, that the assignment was a nullity, there being then nothing to assign. Judge Mackey, without pretending to controvert or question the correctness of this conclusion of fact on the testimony before Judge Thomson, and without questioning the conclusion of law deduced therefrom — indeed, admitting the correctness of the law laid down, simply holds that the newly-discovered evidence would have a very important bearing upon the question of fact, which was made the basis of the former decision, and would, probably, tend to induce a different conclusion, and grants the motion for a new trial, in order that the parties may have the opportunity of introducing this newly-discovered evidence. He does not grant the motion because of any error committed by Judge Thomson, but solely because of the discovery, since the former trial, of certain evidence, which, in his judgment, was well calculated to influence the result and show that the former decision was erroneous; not because of any fault or error in the judge who rendered the former decision, but because of the absence of that full light which subsequent discoveries have enabled the parties to shed upon the questions of fact involved. This ground of appeal cannot, therefore, be sustained.
The second ground of appeal is based upon the allegation that there was no evidence whatever tending to show that -the parties could not, by the use of due diligence, have discovered the new evidence in time for the former trial. There is no doubt that, in order to entitle a party to a new trial, upon the ground of subsequently-discovered evidence, he must show not only that the evidence has been discovered since the former trial, but that he could not, by the use of due diligence, have acquired [124]*124a knowledge of the fact in time to use it at the former trial. As is said by Lord Eldon, in Young v. Keightley, 16 Ves. 350, the question is not what the petitioner knew, but what, by using due diligence, he might have known. If, therefore, the Circuit judge had ignored or disregarded this rule, that would have been such an error of law as would furnish ground for the reversal of his judgment. But he seems distinctly to have recognized this rule, and to have found as matter of fact “ that the defendant, Lawrence, is not chargeable with insufficient diligence.” The question of diligence is one of fact, and, as it has been found by the Circuit judge against the appellant, we see no ground, under the well-established rule, to reverse that finding. Indeed, the showing here seems to be quite as strong as it was in the case of Ex parte Vandersmissen, 5 Rich. Eq. 519, in which leave was granted to file a bill of review on the ground of newly-discovered evidence.
The third ground of appeal alleges error in granting the motion because the newly-discovered evidence was merely cumulative. It is not to be denied that appellant is sustained by expressions of opinion on the part of more than one chancellor in some of our reported cases, but we are not aware of any case in this State in which the abstract proposition has been involved and decided. We know of no case in which a new trial or a rehearing has been refused simply because the alleged newly-discovered evidence was merely cumulative. And when, ás in this case, the newly-discovered evidence is in writing, and is so directly applicable to the very point upon which the decision at the former hearing turned, we think it would amount to a denial of justice to refuse the motion because the newly-discovered evidence may, in one sense, be regarded as cumulative. That there are cases in which a new trial has been granted on the ground of newly-discovered evidence which was merely cumulative, see Jackson v. Crosby, 12 Johns. 354.
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The opinion of the court was delivered by
McIver, A. J.
The object of this action was to subject a certain tract of land to the payment of judgments held by the plaintiff against the defendant, Philpot, and, for this purpose, to set aside a sale of the same, under a judgment of foreclosure, to the defendant, Lawrence, and a deed made by him to his co-defendant, Gravely.
The facts, out of which the controversy grew, are, in brief, as follows: The defendant, Philpot, bought a tract of land from one ~W. G. Field, paying part cash, and giving his note, secured by a mortgage of the premises, for the balance. The allegation on the part of the defendants is, that Philpot borrowed the money from Lawrence with which to pay the note, and paid it to Field, with the understanding that when the note was fully paid to Field, it and the mortgage should be assigned to Lawrence, as a security for the money advanced by him. Accordingly, when Field received the balance due him on the note, the [122]*122mortgage, with the note, was assigned by Field to Lawrence. An action was then brought by Lawrence, as assignee of the mortgage, to foreclose the same, under which Lawrence bid off the land, and, subsequently, conveyed the same to the defendant, Gravely. The plaintiff, on the other hand, contends that the arrangement for the transfer of the mortgage to Lawrence was fraudulent and designed to defeat the creditors of Philpot, some of’ whom had reduced their claims to judgment, and that there was no agreement on the part of Field to assign the mortgage before the debt, secured by it, was paid, and, consequently, when the note was paid by Philpot, the mortgage was satisfied, and the assignment of it was a nullity. The case was heard by Judge Thomson at March Term, 1880, and, on May 3d thereafter, his decision was filed, in which he held that the evidence showed that there was no agreement for the assignment of the mortgage before the debt, secured by it, was paid, and, therefore, that the assignment was a nullity, and that the purchaser under the suit, for foreclosure took nothing. He, therefore, ordered the land sold, and the proceeds disposed of as the court might thereafter order. Within ten days after this decision was filed, the defendants, Lawrence and Gravely, gave notice that, at the next term of the Court of Common Pleas, they would move for a new trial, upon the ground of newly-discovered evidence, and, also, filed a petition, accompanied with affidavits, setting forth fully the grounds of their motion. The newly-discovered evidence relied upon is in the form of a receipt, which reads as follows:
“Deceived of E. H. Lawrence four hundred dollars, to,be credited on note I hold against I. H. Philpot. When the said Lawrence shall raise said note I agree to assign said mortgage to him.
(Signed) “ W. G. Field,
“January 12th, 1876.”
At the next term of the court the motion for a new trial was heard by Judge Mackey and granted, whereupon the plaintiff appealed on various grounds, which will be considered in their order:
[123]*1231. Because “one Circuit judge has no authority to reverse and nullify the decision or decree of another Circuit judge, as • was done by the order granting a new trial in this instance.”
It is quite manifest that Judge Mackey, in' granting the motion for a new trial, does not undertake to reverse or nullify the decision or decree of Judge Thomson. The latter rested his decision solely upon the ground that the evidence, as presented to him, satisfied his mind that there was no agreement to assign the mortgage until after the debt, secured by it, had been paid by the mortgagor, and, therefore, that the assignment was a nullity, there being then nothing to assign. Judge Mackey, without pretending to controvert or question the correctness of this conclusion of fact on the testimony before Judge Thomson, and without questioning the conclusion of law deduced therefrom — indeed, admitting the correctness of the law laid down, simply holds that the newly-discovered evidence would have a very important bearing upon the question of fact, which was made the basis of the former decision, and would, probably, tend to induce a different conclusion, and grants the motion for a new trial, in order that the parties may have the opportunity of introducing this newly-discovered evidence. He does not grant the motion because of any error committed by Judge Thomson, but solely because of the discovery, since the former trial, of certain evidence, which, in his judgment, was well calculated to influence the result and show that the former decision was erroneous; not because of any fault or error in the judge who rendered the former decision, but because of the absence of that full light which subsequent discoveries have enabled the parties to shed upon the questions of fact involved. This ground of appeal cannot, therefore, be sustained.
The second ground of appeal is based upon the allegation that there was no evidence whatever tending to show that -the parties could not, by the use of due diligence, have discovered the new evidence in time for the former trial. There is no doubt that, in order to entitle a party to a new trial, upon the ground of subsequently-discovered evidence, he must show not only that the evidence has been discovered since the former trial, but that he could not, by the use of due diligence, have acquired [124]*124a knowledge of the fact in time to use it at the former trial. As is said by Lord Eldon, in Young v. Keightley, 16 Ves. 350, the question is not what the petitioner knew, but what, by using due diligence, he might have known. If, therefore, the Circuit judge had ignored or disregarded this rule, that would have been such an error of law as would furnish ground for the reversal of his judgment. But he seems distinctly to have recognized this rule, and to have found as matter of fact “ that the defendant, Lawrence, is not chargeable with insufficient diligence.” The question of diligence is one of fact, and, as it has been found by the Circuit judge against the appellant, we see no ground, under the well-established rule, to reverse that finding. Indeed, the showing here seems to be quite as strong as it was in the case of Ex parte Vandersmissen, 5 Rich. Eq. 519, in which leave was granted to file a bill of review on the ground of newly-discovered evidence.
The third ground of appeal alleges error in granting the motion because the newly-discovered evidence was merely cumulative. It is not to be denied that appellant is sustained by expressions of opinion on the part of more than one chancellor in some of our reported cases, but we are not aware of any case in this State in which the abstract proposition has been involved and decided. We know of no case in which a new trial or a rehearing has been refused simply because the alleged newly-discovered evidence was merely cumulative. And when, ás in this case, the newly-discovered evidence is in writing, and is so directly applicable to the very point upon which the decision at the former hearing turned, we think it would amount to a denial of justice to refuse the motion because the newly-discovered evidence may, in one sense, be regarded as cumulative. That there are cases in which a new trial has been granted on the ground of newly-discovered evidence which was merely cumulative, see Jackson v. Crosby, 12 Johns. 354. We may also remark that this evidence can scarcely be regarded as merely cumulative of that offered at the former hearing, for the real point in controversy then seemed to be whether the arrahgement between Lawrence and Philpot was bona fide or collusive, and designed to defeat the creditors of Philpot, and Philpot did [125]*125not undertake to testify positively that there was any agreement between himself and Field, that the mortgage was to be assigned to Lawrence. His language was: “ Think I told Field, in the spring of 1876, that when the $800 was paid, wanted him to assign the mortgage; think I must have told him so.” We do not think that this ground of appeal should be sustained.
The fourth ground of appeal is based upon th^proposition that a new trial should not be granted on the ground of newly-discovered evidence, the effect of which is to impeach or contradict a witness examined at the former hearing. Whatever may be the rule elsewhere, it is quite certain that such is not the rule in this State, nor does it seem to be the rule in England. In Levingsworth ads. Fox, 2 Bay 520, a new trial was granted because evidence was discovered after the trial, showing that one Eountree, a witness who had testified at the former trial, was interested in the event of the suit, though he had stated, when examined on his voir dire, that he had no interest. In Durant v. Ashmore, 2 Rich. 184, a new trial was granted on the ground of after-discovered written evidence, which might have affected the credit of a witness examined at the former trial. So, in Fabrilius v. Cock, 3 Burr. 1771, a new trial was granted because evidence was discovered after the former trial, going to show the subornation of witnesses who testified at the first trial.
The fifth and seventh grounds of appeal having been abandoned, the only remaining question is as to the propriety of the mode of proceeding adopted in this case.
Under the practice of the former Court of Equity it might, perhaps, have been difficult to sustain the mode of proceeding adopted in this case. Under that practice, a petition for rehearing and a bill of review were sustainable on similar grounds, one of which was newly-discovered evidence (Hunt v. Smith, 3 Rich. Eq. 541); but a petition for rehearing was the proper mode of proceeding where the decree had not been signed and enrolled or filed, whereas, after the filing of the decree, the proper mode of proceeding would be by an application for leave to file a bill of review (Simpson v. Downs, 5 Rich. Eq. 425; Hinson v. Pickett, 2 Hill Ch. 353); and such [126]*126bill could not be filed without leave of the court. Simpson v. Smith or Watts, 6 Rich. Eq. 364. If, therefore, this should be regarded as a petition for rehearing, it is liable to two objections : First, because the decree had been filed, and, second, the petition is not certified by two counsel. Ex parte Terry, Rice Ch. 1; 3 Dan. Ch. Pr. 1623. On the other hand, if it be regarded^ in the nature of a bill of review, no leave of the court to me it seems to have been obtained.
It seems to us, however, that since the abolition of the Court of Equity and the requirement of the constitution in Section 3, Article V., that justice shall be administered in a uniform mode of pleading, without distinction between law and equity, these modes of proceeding, by a petition for rehearing and by bill of review, have become inapplicable, and that now the same results can be obtained by motion under the provisions of Section 2, Chap. CV., Gen. Stat. 497. Hill v. Watson, 30 S. C. 277. See also remarks of Simpson, C. J., in State v. David, 14 S. C. 428. It is true that the section of the General Statutes just referred to has been repealed by the act of December 23st, 1880, 17 Stat. 341; but this act, by its express terms, does not apply to judgments then existing or to cases then in suit, and, therefore, does not affect this case. We think, therefore, that there is no valid objection to the mode of proceeding adopted in this case.
The judgment of this court is that the judgment of the Circuit Court be affirmed.
Simpson, C. J., and McGowan, A. J., concurred.