Cunningham v. Waterloo Cash Co.

Counsel

Messrs. Simpson, Cooper Babb , for appellant, cite: As to foreclosure in these proceedings: 9 Enc. Pl. Pr. 365 and 362; Code Civ. Proc., secs. 171, 189; 16 Cyc. 134. Mr. F.P. McGowan for respondent, submits: 1. Although his Honor, the Circuit Judge, overruled the referee, the Judge is presumed to be correct and the appellant must show that the preponderance of the evidence is against the findings of the Judge: 83 S.C. 190 . 2. The appeal is from the judgment in a statutory proceeding under sections 3461-64 of vol. 1 of the Civil Code and does not lie, from the findings of fact: Vol. II, Code Civ. Proc., sec. 11d; 72 S.C. 270 ; 73 S.C. 109 . 3. The preponderance of the evidence clearly shows payment and satisfaction of the mortgage in question. 4. The lapse of time for 17 years without any demand for payment of either principal or interest coupled with other circumstances raises the presumption of payment: 4 Rich. 600. 5. The mortgage debt was paid. If not, no foreclosure could be set up as a counterclaim upon the mortgage. The proceeding was a special statutory one, while the foreclosure is in equity. The foreclosure here