The opinion of the court was delivered by
Mr. Justice McGowan.
Many years ago, the time not clearly stated, J. J. McAteer died intestate, leaving a widow, Martha E., the defendant, and four children, viz., Amelia (afterwards married to one Jennings), John, Mary Jane, and Andrew J., the. plaintiff. It seems that the mother, Martha E., owned two tracts of land, the “Thompson tract” and the “home place,” where the widow and her children lived together; that the mother owed some few debts, and among them, small balances still due to each of her children upon their shares of their father’s estate in her [317]*317hands as administratrix, besides a larger debt which she owed as surety, spoken of as the Adams debt, to secure which she had mortgaged the “Thompson place.”
About the year 1874, the youngest son, A. J. McAteer, the plaintiff, undertook to look after his mother’s business, to run the farms, and to do the outdoor work for her, and as he was not married, he lived with his mother and sisters as one family — they cooking, washing, and helping what they could in the farm, and he overseeing all and getting to his own use all the surplus that was made, without accountability. Matters went on in this way until the elder children, Amelia and John, came of age, left the family, and wished the balance of their shares in their father’s estate. On January 27, 1879, all the parties went to Lancaster Court House, and, in Mr. Moore’s office, had a settlement. It appeared that the defendant, as administratrix, owed John $50, Amelia $205, and Mary Jane $205, making $460, for the payment of which amounts Andrew J. became surety for his mother. Andrew was also entitled to $205, but he acknowledged that it had been paid him in property, and on that day receipted in full for his share of his father’s estate.
After this settlement had been made, but on the evening of the same day, the plaintiff and defendant, mother and son, went to another lawyer’s office, and the mother signed a note to her son for the round sum of $1,000, and secured it by a mortgage of her only remaining tract of land, the “home place.” The parties still continued to live together as one family, that is to say, the mother, Mary Jane, and the plaintiff, the latter having control and getting what was made after paying the debts and supporting the family until Andrew J. married, when he instituted this proceeding in 1887, to foreclose against his mother the mortgage which she had executed at Lancaster in January, 1879. The action was for foreclosure on the note pure and simple. It is true that in her answer the defendant, after denying the con-, sideration of the note, went on to demand an account for the rents and profits of the home place for a number of years, and of the Thompson tract for the years 1879, 1880, and 1883, before it 'was sold to pay the Adams debt; and the plaintiff replied as if he were the owner of the whole establishment, by setting up a [318]*318very large amount, covering a period of eleven years, against his mother for board, lodging, clothing, shoes, medical account, repairs, taxes, &c., &c. But these charges and counter-charges are outside of, the cRse, which was only for foreclosure of the mortgage, and to that the inquiry must be limited.
The plaintiff and defendant both concur that no money was paid or consideration given at the time the note and mortgage were signed; but that they were executed for purposes other than what appeared on the face of the papers. The parties respectively were allowed to testify as to what these purposes were. The mother testified that the only purpose was to save harmless and indemnify Andrew for whatever sums he, as her surety, might have to pay,to Amelia, John, and Mary Jane ($160), and, as she said, ‘Tt was put $1,000, at Andy’s request, to prevent the Adams debt reaching out and seizing the home place.” And she declares that the contingent liabilities referred to were never incurred by Andrew, as he never paid anything of his own money on the debts for which he was surety ; and therefore the consideration had utterly failed, or, in other words, the contingency on which the mortgage was to be binding never arose, of which Andrew was so conscious that when requested to give up the note and mortgage, he always replied, “It will never come against you.” While, on the other hand, Andrew says that the mortgage was not only intended to indemnify him against what was due to Amelia, John, and Mary Jane, but covered his own claim against his mother for $205, making the actual consideration $665; and in respect to the remainder, in the words of his reply (after amendment): “Plaintiff had paid large sums of money for defendant to remove mortgage and judgment on the land, and he assumed other debts and liabilities for her, lawyer’s fees, and other things” — claiming that he had paid John and Amelia with his own money; that he had paid Mary Jane by board at the common table, and that he had incurred all the liabilities which the mortgage was intended to indemnify him against.
It was referred to M. J. Hough, Esq., as special referee, to take the testimony, determine the issues, and to report thereon. He took a small volume of testimony, and, after careful consider[319]*319ation and with some hesitation, he sustained the note and mortgage, and recommended foreclosure — holding, among other things, as follows : “On that day (January 27, 1879), defendant gave the note and mortgage in consideration that plaintiff would pay Amelia Jennings $205.37, John McAteer $50, and Mary Jane McAteer $205.37, making $460, and the consideration of the balance of note and mortgage was past services due him, and that he was to assume ahd pay off whatever other indebtedness of his mother should then be outstanding,” &c. Both parties excepted to this report, and, after argument, Judge Hudson overruled the report and dismissed the complaint, saying: “A careful scrutiny of the plaintiff’s own testimony convinces me that his services in the management of the farm constituted no part of the consideration of the note. I am satisfied that the version of the transaction given by the mother and other witnesses is correct. Her only means of paying off the other distributees was from the products of the farm, and she was liable on a large security debt besides. Her eldest [youngest] son was her only manager, and expected so to continue. He and ,his mother and some younger members of the family were living together in harmony, and laboring together on the farm. * * * For eight years longer (after the mortgage), the plaintiff lived with his mother just as before, and had the free use of all crops made on the place, except what was consumed by the family, and what was expended in repairs and improvements. Making allowance for all this, there still remains to him the lion’s share, so to speak,” &c.
From this decree the plaintiff appeals to this court. The exceptions are long and numerous (19 in number), and they are all in the Brief, and need not be again set out here.
The first exception makes a point of law, “that the Circuit Judge erred in allowing and using the parol testimony, which was taken down by the referee, after objection made, to contradict the note and mortgage given by the defendant.” It does not seem to us that this was a case in which parol evidence was offered to vary the terms of a written instrument. It appeared that no money passed at the time the note and mortgage were given. These papers were in the usual form, and contained no indication of the object or purposes for which they were given. It was, [320]
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The opinion of the court was delivered by
Mr. Justice McGowan.
Many years ago, the time not clearly stated, J. J. McAteer died intestate, leaving a widow, Martha E., the defendant, and four children, viz., Amelia (afterwards married to one Jennings), John, Mary Jane, and Andrew J., the. plaintiff. It seems that the mother, Martha E., owned two tracts of land, the “Thompson tract” and the “home place,” where the widow and her children lived together; that the mother owed some few debts, and among them, small balances still due to each of her children upon their shares of their father’s estate in her [317]*317hands as administratrix, besides a larger debt which she owed as surety, spoken of as the Adams debt, to secure which she had mortgaged the “Thompson place.”
About the year 1874, the youngest son, A. J. McAteer, the plaintiff, undertook to look after his mother’s business, to run the farms, and to do the outdoor work for her, and as he was not married, he lived with his mother and sisters as one family — they cooking, washing, and helping what they could in the farm, and he overseeing all and getting to his own use all the surplus that was made, without accountability. Matters went on in this way until the elder children, Amelia and John, came of age, left the family, and wished the balance of their shares in their father’s estate. On January 27, 1879, all the parties went to Lancaster Court House, and, in Mr. Moore’s office, had a settlement. It appeared that the defendant, as administratrix, owed John $50, Amelia $205, and Mary Jane $205, making $460, for the payment of which amounts Andrew J. became surety for his mother. Andrew was also entitled to $205, but he acknowledged that it had been paid him in property, and on that day receipted in full for his share of his father’s estate.
After this settlement had been made, but on the evening of the same day, the plaintiff and defendant, mother and son, went to another lawyer’s office, and the mother signed a note to her son for the round sum of $1,000, and secured it by a mortgage of her only remaining tract of land, the “home place.” The parties still continued to live together as one family, that is to say, the mother, Mary Jane, and the plaintiff, the latter having control and getting what was made after paying the debts and supporting the family until Andrew J. married, when he instituted this proceeding in 1887, to foreclose against his mother the mortgage which she had executed at Lancaster in January, 1879. The action was for foreclosure on the note pure and simple. It is true that in her answer the defendant, after denying the con-, sideration of the note, went on to demand an account for the rents and profits of the home place for a number of years, and of the Thompson tract for the years 1879, 1880, and 1883, before it 'was sold to pay the Adams debt; and the plaintiff replied as if he were the owner of the whole establishment, by setting up a [318]*318very large amount, covering a period of eleven years, against his mother for board, lodging, clothing, shoes, medical account, repairs, taxes, &c., &c. But these charges and counter-charges are outside of, the cRse, which was only for foreclosure of the mortgage, and to that the inquiry must be limited.
The plaintiff and defendant both concur that no money was paid or consideration given at the time the note and mortgage were signed; but that they were executed for purposes other than what appeared on the face of the papers. The parties respectively were allowed to testify as to what these purposes were. The mother testified that the only purpose was to save harmless and indemnify Andrew for whatever sums he, as her surety, might have to pay,to Amelia, John, and Mary Jane ($160), and, as she said, ‘Tt was put $1,000, at Andy’s request, to prevent the Adams debt reaching out and seizing the home place.” And she declares that the contingent liabilities referred to were never incurred by Andrew, as he never paid anything of his own money on the debts for which he was surety ; and therefore the consideration had utterly failed, or, in other words, the contingency on which the mortgage was to be binding never arose, of which Andrew was so conscious that when requested to give up the note and mortgage, he always replied, “It will never come against you.” While, on the other hand, Andrew says that the mortgage was not only intended to indemnify him against what was due to Amelia, John, and Mary Jane, but covered his own claim against his mother for $205, making the actual consideration $665; and in respect to the remainder, in the words of his reply (after amendment): “Plaintiff had paid large sums of money for defendant to remove mortgage and judgment on the land, and he assumed other debts and liabilities for her, lawyer’s fees, and other things” — claiming that he had paid John and Amelia with his own money; that he had paid Mary Jane by board at the common table, and that he had incurred all the liabilities which the mortgage was intended to indemnify him against.
It was referred to M. J. Hough, Esq., as special referee, to take the testimony, determine the issues, and to report thereon. He took a small volume of testimony, and, after careful consider[319]*319ation and with some hesitation, he sustained the note and mortgage, and recommended foreclosure — holding, among other things, as follows : “On that day (January 27, 1879), defendant gave the note and mortgage in consideration that plaintiff would pay Amelia Jennings $205.37, John McAteer $50, and Mary Jane McAteer $205.37, making $460, and the consideration of the balance of note and mortgage was past services due him, and that he was to assume ahd pay off whatever other indebtedness of his mother should then be outstanding,” &c. Both parties excepted to this report, and, after argument, Judge Hudson overruled the report and dismissed the complaint, saying: “A careful scrutiny of the plaintiff’s own testimony convinces me that his services in the management of the farm constituted no part of the consideration of the note. I am satisfied that the version of the transaction given by the mother and other witnesses is correct. Her only means of paying off the other distributees was from the products of the farm, and she was liable on a large security debt besides. Her eldest [youngest] son was her only manager, and expected so to continue. He and ,his mother and some younger members of the family were living together in harmony, and laboring together on the farm. * * * For eight years longer (after the mortgage), the plaintiff lived with his mother just as before, and had the free use of all crops made on the place, except what was consumed by the family, and what was expended in repairs and improvements. Making allowance for all this, there still remains to him the lion’s share, so to speak,” &c.
From this decree the plaintiff appeals to this court. The exceptions are long and numerous (19 in number), and they are all in the Brief, and need not be again set out here.
The first exception makes a point of law, “that the Circuit Judge erred in allowing and using the parol testimony, which was taken down by the referee, after objection made, to contradict the note and mortgage given by the defendant.” It does not seem to us that this was a case in which parol evidence was offered to vary the terms of a written instrument. It appeared that no money passed at the time the note and mortgage were given. These papers were in the usual form, and contained no indication of the object or purposes for which they were given. It was, [320]*320therefore, necessary to resort to parol proof to ascertain the agreement of the parties. We are not called upon to give construction to the note and mortgage, but to determine from the evidence in what way and for what purpose they were to be used. The precise point was ruled in a case very much like this — Kaphan v. Ryan, 16 S. C., 352: “Parol testimony may be received to prove an agreement, in which a written instrument originated, and of which it constituted only a part. Thus, where a note was given for a sum certain, payable at a day certain, secured by a mortgage, but no money passed, and it is admitted by both parties that these instruments were a security for future advances, it may bo shown by parol what the agreement was, and what the bond and mortgage were intended to secure,” &c. See McGaughrin & Co. v. Williams, 15 S. C., 505; Calvert v. Nickles, 26 S. C., 304; Fullwood v. Blanding, Ibid., 312 ; 1 Jones on Mortgages, §§ 64, 384, 612; 2 Ibid., § 1297, and notes.
All the other exceptions, in one form or another, complain of the findings of fact by the Circuit Judge, overruling the referee. The rule of this court upon that subject is well known. Being a case in chancery, we have the right to consider all the testimony. There is conflict in it, and in that case the judgment of the Circuit Judge is prima facie right. See Maner v. Wilson, 16 S. C., 481. In this connection, also, it was strongly insisted that the existence itself of the written note and mortgage raised a presumption of fact, that the $1,000 referred to was due and owing at the time in manner and form as stated, and consequently the onus was on the defendant to overthrow that presumption. We think that such papers duly executed would ordinarily afford at least prima facie evidence of the truth of the statements contained in them. But such rule cannot apply, where, by common consent, the papers do not express the whole agreement of the parties, or the real state of the facts, but were executed in form solely for the purpose of securing the party against future contingent or doubtful liabilities. In such case, there is no presumption, and the facts underlying the papers, like other facts, must be proved.
The Circuit Judge concurred with the referee in most of his findings. He concurred w’ith him, that plaintiff’s express liability [321]*321for his mother, which went into the consideration of the mortgage, did not exceed the amounts due to Amelia, John, and Mary Jane, viz., $460, and that the amount due Mary Jane was never paid by. “boarding” or otherwise. But as to the remainder of the consideration, viz., $540, the referee found that it was “for past services due him,” and that he was to assume and pay “other debts” of his mother, vaguely stated without names, dates, or amounts. In this finding the Circuit Judge did not concur, holding that it was not supported by the weight of the evidence. We have read the mass of testimony carefully, and found it so confused and conflicting, that we are not surprised that there should be different views as to its proper force and effect; but after giving it all the consideration we could, we cannot say that the finding of the Circuit Judge was erroneous.
From 1874 to 1879, her daughters and son, Andrew, lived with Mrs. McAteer on the old homestead as one family, Andrew superintending the farm and receiving the proceeds of crops, and his mother and sisters cooking, washing, and doing what they could to keep up the common establishment. No strict accountability was exacted of Andrew, and there was not any agreement or expectation that he was to be paid regular wages as an overseer. That, as it strikes us, was an after-thought. (1) The plaintiff, in his reply to the answer of the defendant, wherein he undertook to give an account of the mortgage and its consideration, did not claim that his “past services” entered into it. (2) On the morning of the day on which the mortgage was executed, the plaintiff receipted to his mother for his share of his father’s estate, without saying anything about a claim “for services.” It seems to us that if he held such a bona fide claim, he would at least have mentioned it on that occasion. (3) The referee, in another part of his report, states (as we think, correctly) “that his services were to stand against rent, everything included, taking care of family,” &c. It does appear, with reasonable certainty, that the plaintiff was an active successful farmer, and, the wants of the family being few and simple, he made the farm profitable. In that he was enabled to assist his aged mother ajnd her unmarried daughter, and to that extent he certainly deserves credit; but we cannot take the view, that in addition to his comfortable support [322]*322thus secured, and in addition to the whole surplus crops and rents, he should also be allowed now, after the lapse of years, to raise a lumping charge for services, sufficient to absorb' the estate itself, leaving his mother and unmarried sister penniless and homeless.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.