O'Neill v. Bennett
O'Neill v. Bennett
Opinion of the Court
The opinion of the court was delivered by
The plaintiffs, appellants, agreed to make advances to the defendant, respondent, for the year 1886, and to secure the same the defendant executed a bond to plaintiff for $505,' payable on or before the 1st of January, 1887, then next ensuing, with interest at the rate of ten per cent., payable annually, giving also a mortgage of certain real estate. The supplies for the year 1886 seem to have been paid, except a small balance of $37.29. The plaintiff made advances for the year 1887 to a considerable sum, for which an agricultural lien had
Now, the main and, in fact, the only question contested in the appeal is, whether his honor erred in ruling out the proposed testimony, and in holding that the mortgage could not be extended to cover the advances of 1887 by-oral testimony. We think the case of Lindsay v. Garvin (31 S. C., 259) is directly in point on this question, sustaining fully the ruling of his honor below. Such being the fact, we deem it wholly unnecessary to elaborate the principles upon which that case was based. This was a decision from our own court, and is binding upon us, and we cannot disregard it, and until overruled must be regarded as having settled the law in such cases.
It is said, however, that the case of Walker v. Walker (17 S. C., 337) is in conflict with Lindsay v. Garvin, supra. This is a mistake. There is no conflict. In Walker v. Walker, the defendant had executed a deed absolute on its face, conveying a certain tract of land to the plaintiff. Upon suit brought to recover the possession of this land by the plaintiff, the defendant was allowed to show by parol testimony that the deed, though absolute on its face, yet was intended as a mortgage to secure certain advances made by the plaintiff to the defendant, and the defendant having tendered the amount of the advances, which she claimed was intended to be secured thereby, resisted the right of the plaintiff to recover. Thus, the case was, in substance, or in the nature of, an action on the part of the mortgagor to redeem
In the case at bar, however, the effort is to extend the mortgage to a subsequent debt, which, it is admitted, was not in contemplation at the execution of the mortgage, and this effort is made by offering parol testimony; a clear case, as it seems to us, of an attempt to add to a written instrument by parol terms which do not appear therein. The action below had no features of an action to redeem whatever. It was nothing more than an action for foreclosure pure and simple; not the foreclosure of a mortgage for the debt secured by it, but the interjection of another debt not secured thereby, and that, too, after the mortgage, in so far as the debt secured is involved, has been substantially paid off. There is a remark in the opinion of Walker ¶. Walker, which does seem to be in conflict with Lindsay v. Garvin, but the case did not turn on the position indicated by said remark, and it cannot be regarded as a principle decided in that case.
It is conceded that there was a mistake in the decree below as to the time when the small balance of $>37.29, admitted to be due under the mortgage, should bear interest. His honor decreed interest thereon at the rate of ten per cent, from the date of the master’s report. It should have been from January 1, 1887, as reported by the master.
It is the judgment of this court, that the judgment of the Circuit Court be modified, so as to allow interest at the rate of 10 per cent, upon $37.29 from the 1st of January, 1887, instead of
Reference
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- O'NEILL v. BENNETT
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- A mortgage given to secure a bond, shown by parol to cover a contract for advances to be made during that same year, cannot be shown, in an action of foreclosure, to have been subsequently extended by parol to cover further advances during the next succeeding year. Lindsay v. Garvin, 31 S. 0., 259, approved, and distinguished from Walker v. Walker, 17 S. C., 337.