Moore v. Beard

74 S.E. 1062, 91 S.C. 496, 1912 S.C. LEXIS 260

• Court: Supreme Court of South Carolina
• Decided: June 6, 1912
• Docket: 8229
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Hydrick.

This is an action to foreclose a mortgage which was given to secure the payment of a note of which the following is a copy:

“$138,780.00. Brunson, S. C., April 14, 1910.

“On or before the 15th day of February, 1911, I promise to pay to the order of D. F. Moore at Bank of Brunson, Brunson, S. C., the sum on one hundred and twenty-eight thousand seven hundred and twenty ($188,730.00) dollars, with interest on the same from the 15th day of February, 1910, at the rate of five (5) per centum per annum, payable annually, until the whole has been paid, together with a reasonable sum of attorney’s fees, in case this note is placed in the hands of an attorney for collection, but it is agreed that the sum of $1,900.00 shall be paid on the said indebtedness on or before the 19th day of May, 1910, and placed on the mortgage indebtedness on the property deeded to D. F. Moore et al., by me, said property situated near Richmond, Virginia, and default by me in the payment of the said sum of $1,900.00 shall be a default in the payment of this note, the said sum of $1,900.00 to be credited on this note when paid. Value received. (Signed) Herbert A. Beard.”

The mortgage recites the facts that the note represents the purchase price of the lands therein described, and also the fact that all of said lands had been conveyed to defendant, by deeds of even date, by D. F. Moore, John W. Rags-dale, J. E. Ragsdale, Mrs. Willie C. Blackburn and Mrs. Bertha V. Barnes. The mortgage then described sixteen parcels or tracts of land, among others, a tract of ten acres known as “Dawson Landing,” and a tract of 2,914 acres known as the “Starke Lands,” and a tract of 800 acres known as the “Cooper Lands,” and some machinery. It also recites that the mortgagor had assigned to the mortgagee as further security for the payment of the mortgage •debt, certain timber leases which the mortgagor had purchased from the mortgagee or John W. Ragsdale, J. E. Ragsdale, Mrs. Wille C. Blackburn, Mrs. Bertha Barnes or any other person on lands in Hampton or Beaufort county.

The defendant, Beard, answered and set up fourteen defenses. On plaintiff’s motion the Court struct out the second, third, fourth, fifth, all of the sixth after the word “maturity” in the second line thereof, ninth, tenth, twelfth and thirteenth, as irrelevant and redundant. These defenses will be set out in the report of the case. The appeal questions the correctness of this order.

1 The appellant argues only two propositions, and we shall confine our attention to these. His first contention is that the Court erred in striking out the second defense. It will be noted that it is therein alleged that the parties therein named are necessary parties to a complete determination of defendants’ rights under and by virtue of the transactions referred to in the complaint, because they own interests in and under the mortgage. The •exception assigning error in striking out this defense takes the same ground, basing it upon the position that it appears from the complaint that said persons were grantors of part of, or interests in, the property for the purchase money •of which the note and mortgage were given, and, therefore, they had an interest in the note and mortgage. But it does not follow that, because they owned the property and conveyed it, they have any interest in the note and mortgage given for the purchase price.

2 As appellant fails to state facts sufficient to constitute a cause of action against said parties, or any of them, grow ing out of the transactions set out in the complaint, whether they, or any of them, have any interest in the note and mortgage sued on is a matter of no concern to him. Therefore, their presence is not necessary to a proper and complete determination of his rights.

3 Appellant’s next contention is that he is entitled under the allegations of the other defenses stricken out to a pro tanto reduction of the purchase price, because his grantors did not convey to him a good title to the “Starke Lands” and “Dawson’s Landing.”

It will be observed that nowhere does the defendant allege that he failed to get possession of either of said tracts, or that he has been evicted from either. It must be presumed that he got possession under his deed, and that he is still in possession, until the contrary is alleged. If he did get possession, and has not been evicted by title paramount, he has no right to ask for an abatement of the purchase price. The principle is too well settled and it would be a useless consumption of time to do more than refer to the decided cases. Nathans v. Steinmeyer, 57 S. C. 393, 35 S. E. 733, and cases cited. Diseker v. Land & Co., 86 S. C. 284, 68 S. E. 529, and cases cited. In the recent cases of Godfrey v. Burton Lumber Co., 85 S. C. 132, and Peake v. Renwick, 86 S. C. 226, 68 S. E. 531, cited and relied on by appellant, it was alleged and proved that the purchasers of lands failed to get possession of parts of the lands which they had purchased, and that such parts were in possession of others who were holding them under paramount title.

Affirmed.

Messrs. Justices Watts and Eraser did not participate.