Opinion
13603
March 15, 1933.
Before SHIPP, J., Florence, September, 1931. Appeal dismissed and order affirmed.
Action by Jefferson Standard Life Insurance Co. against P.H. McEachin. From an adverse order, defendant appeals.
The order directed to be reported is as follows:
"This matter came on to be heard by me on Saturday, May 14, 1932, upon the pleadings in the cause and the report of C.W. Muldrow, Esq., master in equity, who took and reported the testimony in the case.
"The only issue in the case is as to whether or not plaintiff waived its right to demand payment in Greensboro, N.C., before surrendering the note and mortgage it held by reason of the fact that it had previously accepted checks issued by the defendant for semi-annual installments upon a bank in Florence. In cases where there is no designation in the contract between the parties resident in different states as to the place of payment, the courts hold that payment shall be made in the state of the debtor, and that it shall be the duty of the payee to provide means in the debtor's state for such payments. In this case, however, the contract made originally with Mrs. Reese and assumed by Mr. McEachin provided for payment to be made in Greensboro, N.C., and, unless such contract was waived by the action of the plaintiff, the defendant would be required to make payments at that point. The fact that he made payments of his semi-annual installments would not show waiver of the plaintiff's requirements under the contract to have payment made in Greensboro before surrendering its security in the case. These payments were accepted in this manner merely for defendant's convenience. As I see it, no legal tender has ever been made by the defendant to the plaintiff, and this would be requisite, in any event, before he could claim a remission of interest, or that the right of the plaintiff to foreclose had been forfeited. The defendant would therefore be chargeable with interest, as outlined in the note and mortgage, up to the date of payment, and would further be chargeable with the costs and expenses of foreclosure, which will include an attorney's fee. This fee, I fix at $200.00 as a reasonable attorney's fee in the cause.
"It is therefore ordered that a decree of foreclosure would be in order covering the principal amount due, with interest, costs, and attorney's fee."
Mr. P.H. McEachin, for appellant, cites: Waiver is the intentional relinquishment of a known right: 6 R.C.L., 990; 146 S.E., 612; 140 S.E., 99; 104 S.E., 550; 145 S.E., 196; 3 A.L.R., 205; 130 N.W. 542; 21 R.C.L., 70. As to tender: 66 S.E., 880; 136 S.E., 762; 155 S.E., 45; 5 Mass. 67; 4 Am. Dec., 32; 32 A.M., Dec. 620; 85 A., 100; 134 S.E., 147; 19 R.C.L., 450; 106 P. 495; 36 L.R.A. (N.S.), 232; 84 S.C. 41; 65 S.E., 934; 11 A.L.R., 978; 145 S.E., 71; 127 S.E., 41. Tender after default: 14 S.C. 66; 2 S.E., 121; 161 S.E., 405. Evidence of debt should be shown when payment demanded: 148 S.E., 476; 65 S.E., 385; 11 A.L.R., 969; 132 A.S.R., 1133; 103 P. 822; 1 Des. Eq., 409; 110 U.S. 301; 4 Su. Ct., 5; 138 U.S. 509; 11 S.Ct., 426; 101 U.S. 622; 25 L.Ed., 1030; 164 S.E., 428.
Messrs. McNeill Oliver, for respondent.
March 15, 1933. The opinion of the Court was delivered by
This appeal presents an unusual feature. In this period when all mortgagors are seeking a moratorium against the foreclosure of mortgages, the appellant is complaining that respondent is making it hard for him to pay his mortgage debt.
It appears that appellant bought some real property upon which the respondent held a mortgage, the payment of which appellant assumed from July 16, 1927.
From January 22, 1928, up to and including January 22, 1931, he made payment of the semi-annual installments as they fell due, by checks on banks at Florence, S.C. The note and mortgage fell due June 22, 1931. Before that date, plaintiff offered to renew the debt if defendant would pay a renewal fee of $25.00. This defendant declined to pay, and arranged to borrow the money to pay off the debt, and wrote the plaintiff that if it would send the note and mortgage to the same bank at Florence where defendant had made the semi-annual payments since assuming the debt, it would be paid. Plaintiff insisted that the contract fixed the place of payment at Greensboro, N.C., and demanded payment in New York Exchange at that place.
This brought about a condition of stalemate between the parties. Plaintiff sent the papers to its attorneys at Florence for foreclosure.
It appears that defendant took the position that he should not be required to pay interest from the due date of the note and mortgage, and attorney's fees. It was stated in argument that counsel for plaintiff, before suit for foreclosure was begun, offered to forego the attorney's fees if defendant would pay the interest charge. This defendant declined to do, and the action for foreclosure was begun.
It appears that both parties to the controversy became somewhat stubborn; the plaintiff standing upon the letter of the contract, and defendant upon an alleged custom, waiver, and estoppel.
The matter was referred to the master, who took the testimony, upon which the case was heard by Judge Shipp, who, in due time, filed an order holding that the plaintiff had the right to stand on its contract and demand payment at Greensboro, and holding further that plaintiff was entitled to judgment of foreclosure.
It is from this order that the appeal comes to this Court.
We think the order of the Circuit Judge correctly disposes of the case. Let it be reported.
Accordingly, the appeal is dismissed, and the order appealed from is affirmed.
MR. CHIEF JUSTICE BLEASE, MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE G.B. GREENE concur.