Rogers v. Felder

82 S.E. 436, 98 S.C. 178, 1914 S.C. LEXIS 50

• Court: Supreme Court of South Carolina
• Decided: July 15, 1914
• Docket: 8876
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gage.

Action in a magistrate’s Court for the recovery of the possession of two cows. Judgment by magistrate for plaintiff. Affirmed by Circuit Court.

Appeal here upon four assignments of error.

The plaintiff’s contention in the trial Court was: that defendant’s father owed plaintiff a debt, and defendant delivered to plaintiff the cows in satisfaction thereof.

•If that be so,' and the Court so- found, then it was- not a promise by defendant to pay the debt of another; and the case does not fall within the inhibition of the statute of frauds. Thus the third exception is not well taken.

The other three exceptions relate to- the force and effect of a mortgag'd on the cows which defendant had aforetime executed to C. M. Davis & Son. At most the execution of such a mortgage was but an assertion of title by Julia Ann.

There is no- question but that she did have title, for the plaintiff’s contention is she delivered the cows to him in satisfaction of a debt due to him by another.

C. M. Davis & Son did not assert title under their mortgage ; they did not come in as parties to the cause; they did not pursue the remedy prescribed at section 86 of the Code o-f Civil Procedure, and they do- not appeal from, the judgment of the Circuit Court.

The judgment of the Circuit Court is affirmed.