The Daily clarion. [volume] (Jackson, Miss.) 1866-1888, 1867-04-16
DE(gSIOgS OF THE HIGH COUkl
OF
ERRORS AND APPEALS
OCTOBER TERM, 1850.

The attendant in error, as President Of the
Bank of Camden, South Carolina, IIeu Ni'
original bill 4. this ease, praying tue 10 ~
closure of mortgage executed oy ih9 -. -:
Ii II in error, for the payment OF LWo
sorv notes each for the sum OF SOW Alaoo
Iy the plaintitf in error 70 the BANK oup-
seoueptIy. an amended bill was HE'D c1dn
inc in material respects the case a hlSiuo "
the orr FINAL bill. and presenting the LiatteiS
of controversy. which were decided oy the
Court below, and which are here presenieu
for our deter Linatlon-
The amended bill disclaims all night TO re-
cover uDou the latter of the two notes Tor
-, 600 and offers to cancel It; audit CLAIMS
to recover on tbesiormer of these notes 70
the amount Of Sl5, 600 only, with interest
and to that extent, it claims that the mort
gage is a security, and prays Tor loteclos-
Tre and sale. of the 1nortgaged property Iof
the payment thereof.
Tie pleadings and proofs IN the RECORD are
volumiuous. aud are not necessary to be
stated in detail So far as they are material
they present the following state OF case
II appears that. in the summer OF 1904,
Adams who was then engaged IN the bus
mess of a private Banker in this State, pro
nosed to obtain a loan of fifty Thousand dol
lars from the Bank of Camden, IN South Gar
DINA, in lie notes OF that banh'
To Lee mt into circulation. in this
ness and that the Bank aeceded TO
his proposition upon the following terms
that he should execute to the Bank his two
nraruisSory notes each for SO eco one pay
able on the 18th March, 1858, and the other
ON the 18th April 1853, bearing five per cert.
interest, payable in New Orleans, Whien
notes were to be secured by mortgage or deed
of trust on property, real and PERSONAL III
this State, worth more than fifty per cent.
over the amount Of the notes, the value OF
the property and the security to be approved
bv Gov McWnlie a friend of the officers OF
the Bank; and Adams was TO agree to keep
the bank notes to be received by him, ana
which were to be marked by him, in clrcnla-
ton. bv redeeming them, as they should be
returned to the Bank and sent 10 him at
Grenada, in this State, at his risk and eX-
pense, by his check at sight on New Orleans,
at par; and the mortgage to be so Drawn so
as to protect not only the two notes, but such
other advances as the Bank might make
him. Of the same character, as was cOnten-
plated to be done from time to time, II found
expedient To these terms Adams consent
ed about LIST September 1857, while he was
in New York, where he was informed OF
them; and, he then proposed to the Bank,
to let him have $4,000 of the money, to take
home with him, for which he would leave
his drafts on Walt, Noble and Mobley, mer-
chants of New Orleans, with their letter OF
credit, until the mortgage and notes could
be executed on his return home as agreed on.
On or about the 18th September 1857, the
Bank aeceded to this proposition, advanced
him the Sl5 900, and took his draft for that
sum on Walt, Noble and MobIev. with their
letter of credit in favor of Adams. Early in
October he transmitted to the Bank,
through H. w Conner, its agent,
at Charleston, n mOrtgage-that sought
to be here foreclosed-on tract of
IL. Ts4Aa "a
AGENT promptly forwarded to Jhe bank; and, in
a few days thereafter. the President returned
the mortgage to Mr.. COnn0r, and St8ted to him
that it was insufficient and unsatisfactory, be-
cause it covered only lands instead Of lands
and personal property, and because there was
no certificate Of GOV. New lille. If the value of
The property contained in it; both of which par
ticulars were required by the terms the bank
had proposed. and which Adams had accepted;
and the agent was nStruCted to take the papers
to Memphis where Adams was to meet him,
and to get the mortgage made 10 conform to the
agreement. or TO substitute an additional Sc
curitv, or otherwise TO make it safe TO the bank,
in a manner satisfactory to the agent. The
agent wrote twice to Adams. to meet him at
Memphis. but did not find him there. On the
3 st of October, he met Adams in New Orleans,
and proposed to him to arrange the business;
but he replied that il was impractcable then
to make any arrangement requiring payment
of money, owing TO the commercial crisis then
prevailing there and throughout the country
and nothing was done towards settling it.
Nothing further took place in the business I'M
til January 1855, when the agent met Adams in
New Orleans, and proposed to him to take APP
proved acceptances for the $4,000, which he
had received from the bank, and to give him up
Tue T 81 MN iil anu am rrreneu v the BANK
with others of the Sl5.0GO, as they should be re-
deemed by the bank, he could continue to use
the amount received by him until the times
became better. and new arrangement could
be made for the future, the securities then held
by the bank to remain as they Were; but he de-
clined to accede to it.
1t distinctly stated, in the answer of the
President of the Bank, to the cross bill of
Adams, that the bank refused to accept the
mortgage rs a compliance with the engagement
of Adams. The witness. Conner, states substan-
tally the same thing; and that upon receiving
the mortgage, the bank referred it back to him
to have il corrected or amended. so as to con-
form TO the agreeme mt, or to get other and sat
i>f3ctOry security. The answer of Adams to
the amende bill also states, that the mortgage
was not accepted as 4 compliance with his
agreement, ana that the bank refused to treat
ii aS such.
A to the purpose for which the bill Of ex
change for $4,000 was given TO the bank the
amended bill states, that after the loan of the
1900 had been agreed on, Adams desired the
bank to advance him $4,000, on the faith OF the
agreement TO execute the notes and mortgage
and as part of the $4,000. and Offered to place
in the hands of the bank. the bill of exchange
u.
good faith, execute the mortgage ACCORDING ia
the agreement; and il admits, in terms that
the bill Of exchange was to become imperative
and to be returned to A dams, upon the cxeeu
ton of the mortgage according to the agree
ment Adams states, in his answer. that the
bill was given to secure the $4,000 advanced
TO him, until he should execute a satisfactory
mortgage for The $4,000. Mr.. Conner states.
in his deposition that the bill was left with the
bank by Adams. when he received the money
to represent the $4,000 until Adams furnished
the bank hfs mortgage, in accordance with his
agreement-that the mortgage was not in con
forinlty with this agreement. was not Sati<fac-
tory, and was referred ba * for amendment ana
aud that the bank. therefore. held
on TO the bill of exchange until the MORTGAGE
should be made satisfactory.
The matter OF controversy presented by
this record, is solely, whether the Bank i
entitled to hold and enforce the MORTGAGE
as security for the bill of exchange for SIS
700. And the first question that arises is
whether it was intended by the parties thar
-he bill was to be secured by the mortgage.
Both the pleadiugs and the proof appear
% place this point beyond all possibility of
ioubt. They all show that the bill was in
ended to lee n distinct security from the
mortgage, and pledge and indemnity for
he faithful execution of the mortgage. It
vas to take effect and be in force as the Sc !
uTIty OF the Bank for the money advanced. /
n case Adams should fail to execute the /
mortgage, according to the agreement but /
o be imperative and be returned to Adams /
Ipon the due execution of the mortgage +
his is the explicit admission of the amended /
iii; and the witness Conner states that the /
bank held on TO the bill until the mortgages
hould be made satisfactory, and that II was
Intended to represent the $4,000 until
Adams furnished the Bank his mortgage ac-
ordlng TO the agreement. When tie mort
age should be made, the money due bv the
all, was 10 be part of the debt secured bv
he mortgage, and the bill was to be deliver
d up to Adams but until that was done It
ras to he an independent security for fbe
eht. Instead therefore, of the rlortrape
eIng a security for the bill, it is plain Thar
he bill Was intended to be security for fife
Ne execution of the mortgage. and to he
ONE imperative when the mortgage shonld
e executed 1t is clear that the Ban was
itlsfed with the security of the bin and
tier of credit for the $4,000 advanced and
nat the parties intended that thar sbouId
e the security for that sum, in the event of
lilare to execute mortgage according to
le agreement.
The next question Is, whether. the u,anex
Ne by the bill being a part of the sum in
'nded ultimately to be secured by the mort
age, the Bank is entitled to hold the mort