Opinion
9359
March 29, 1916.
Before MAULDIN, J., Barnwell, May, 1915. Affirmed.
Action by John C. Fowke and others against Mrs. Sinea De Witt and others. From a judgment for plaintiffs, defendants appeal.
The appellants thus state their case:
"This action was commenced for the purpose of reviving a certain judgment rendered in the Court of equity on the 6th day of November, 1869, in a cause entitled Johnson Hagood, Commissioner in Equity, v. William H. Hagood, John J. Cater, and Charles M. De Witt.
"Since the rendition of said judgment John J. Cater died testate November 9, 1872, Charles M. De Witt and William H. Hagood, codefendants, died intestate prior to the year 1881, as is admitted in the seventh paragraph of the complaint at folio 18 of brief, and the plaintiffs, who are the alleged executors of J.J. Cater, deceased, now seek judgment against the heirs and distributees at law of Charles M. De Witt, deceased, as principal and codefendant of said J. J. Cater for the deficiency upon the original judgment.
"The defendants, answering the complaint, first set up a general denial, and, second, the statute of limitations.
"The cause was heard before Hon. T.J. Mauldin, and, after argument submitted, rendered his decree, granting the plaintiffs the relief prayed for in the complaint, to which the defendants now except.
"The plaintiff's contention is that in 1859 C.M. De Witt, John J. Cater, and William H. Hagood executed and delivered their bond to Johnson Hagood, commissioner in equity for the district of Barnwell, in the penal suit of $1,406.28, conditioned for the payment of the full and just sum of $713.14, to be paid on the 16th day of June, 1859, with interest, and in order to secure the said bond C.M. De Witt executed to said commissioner his mortgage deed, covering certain lands as security to the bond, and that thereafter, on the first day of April, 1859, C.M. De Witt, John J. Cater, and William H. Hagood executed and delivered their certain other bond in the penal sum of $1,293.85 to Johnson Hagood, commissioner in equity, conditioned for the payment of the full and just sum of $646.69 one year from date, with interest, and in order to secure the said bond C.M. De Witt executed and delivered to said commissioner in equity his certain other mortgage deed covering lands in the said district; that said bonds and mortgages were given to the commissioner in equity for money loaned by the said commissioner to C.M. De Witt; that said bonds were not paid at their maturity, and suit was instituted by the commissioner on the behalf of W.A. Nerland, clerk of the Court, to recover the amount and foreclose the mortgages, to sell the premises, and apply the proceeds of said sale to the indebtedness of said bonds, which resulted in judgment on the 6th day of November, A.D. 1869, against C.M. De Witt, J.J. Cater, and William H. Hagood, and that the parties to the original action, by consent under order of the Court, postponed the sale of the mortgage premises until September, 1879, when an order was passed fixing the date of sale on sales day in November, 1879, or some subsequent convenient sales day thereafter, and that the sale occurred on sales day in December, 1879, and that the amount realized from said sale was not sufficient to pay the said judgment, and a large sum therefore remained unpaid, and that Judge McKay, on June 11, 1881, upon motion of complainants' counsel, ordered the clerk to issue execution against C.M. De Witt and his sureties, if said balance was not paid by November 1, 1881. In the meantime C.M. De Witt and his said sureties had departed this life, and thereafter, in pursuance to said order the lands of J.J. Cater and William H. Hagood, sureties of said C.M. De Witt, were sold by the sheriff and applied to the extinguishment of the deficiency upon the said judgment debt.
"The appellant takes the position by exceptions 1, 3, 5, and 8 that the credits entered upon the said judgment derived from the sale of the land of the codefendants of Charles M. De Witt were not binding upon the heirs and distributees at law of Charles M. De Witt, deceased, and that said alleged credit was involuntary, or an enforced payment, and that such credit derived from the sale of the lands of the codefendants of said Charles M. De Witt, deceased, did not operate as a new starting point from which said judgment would commence to run, for the reason that section 3535 of the Code of 1912, vol. I, requires: `That if the holder of such lien or liens * * * shall, at any time during the continuance of such lien, cause to be recorded upon the record of such mortgage, or deed, having the effect of a mortgage, or shall file with the record of such judgment, decree or other lien a note of some payment on account or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage deed having the effect of a mortgage, judgment, decree or other lien, shall be, and continue to be, a lien for twenty years from the date of record of any such payment on account or acknowledgment.'"
Messrs. Harley Best and J.O. Patterson, Jr., for appellant, cite: Civil Code as existence of claim: Sec. 3535; 31 S.C. 11; 32 S.C. 378; 72 S.C. 179; 28 S.C. 302; 16 S.C. 198; 14 S.C.L. (3 McC.) 240; 33 S.C.L. (2 Strobh.) 353; 70 S.C. 228; 46 S.C. 11; 198 S.C. 489; 81 S.C. 82. As to liability of heirs: 28 S.C. 285; Angel Lim. 263; 6 Johns. Ch. 373; 24 S.C. 99; 33 S.C. 354. Receipt: 28 S.C. 285; 16 S.C. 198. Evidence: Code Civ. Proc., sec. 438.
Messrs. Bates Simms, for respondents, cite: 33 S.C. 354; Code Civ. Proc., sec. 348.
March 29, 1916. The opinion of the Court, after reciting the foregoing statement of facts, was delivered by
The case of Patterson v. Baxley, 33 S.C. 354, 11 S.E. 1065, is conclusive of this case against the appellant's contention, and, unless that case is overruled, it governs here. In that case (pages 357 and 358, of 33 S.C. page 1066 of 11 S.E.) it is said:
"`It is further ordered that the complainant be at liberty at any time thereafter, when any such deficiency shall have become due according to the bond, to apply to the Court for an execution against all the defendants to collect the amount which shall be due thereon.' This was done precisely as directed, and the unpaid balance collected without objection out of the property of the surety, J.C. Holley, who is now endeavoring to revive the judgment against the principal defendants in order to reimburse himself the amount paid by him as surety. See Freer v. Tupper, 21 S.C. 81."
It appears in writing from the record in the sheriff's office that "payments" were made to him officially on the judgment for the deficiency at three separate times, viz.: January 20, 1870; October 3, 1870; and November 7, 1870. From this last payment to October 18, 1889, when the summons to renew was filed, was less than 20 years. We cannot doubt that the receipts in writing on the record are substantial compliance with the new rule of evidence created by the act of 1879, supra, which requires a note of some payment on account, or some written acknowledgment of the debt secured thereby, etc.
We think the summons to renew the execution was filed within time, within 20 years from the last "payment on account" in the record. This case decides the exact question before us and is conclusive of it.
The judgment is affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK and GAGE concur in the opinion of the Court.
MR. JUSTICE WATTS dissents.