Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1882-05-04
JUDICIAL DECISION.

ran, at the last term of the Court of Common
Pleas for York, we publish below his decree
in the case of Nichols VS.. Briggs. The merits
of the case and the points involved are fully
developed by the decree, which was filed in
the Clerks Office last Saturday, and is as
follows
John Nichols, plaintiff, VS.. r. F. Briggs, defen-
dant-Complaint for foreclosure of mortgage
of real property.
This case came on to be heard before me at
the York Spring Term 1882.
The pleadings consisted Of summons and
complaint for foreclosure in the usual form,
and the answer of the defendant, which did
not deny the execution of the note and mort
gage, but set up the defence of the Statute of
Limitations, and by reason of said defence de-
MED any liability whatsoever to the plaintiff.
The transaction which formed the subject of
this action may be thus briefly stated:
On the fifth of June, 1874, the defendant
Briggs made and delivered to the plaintiff
Nichols his note, under seal, for the sum Of
$500, whereby he promised to pay to Nichols
the said sum Of money twelve months after
the date thereof, with interest from date and
at the same time executed and delivered to
Nichols his mortgage deed, in the usual form,
of plantation of land in York county, con-
tanning 800 acres, "for the better securing the
payment" of said note.
The sole question discussed before me by the
counsel engaged in this cause, and with much
elaboration, may be thus stated Can an action
for foreclosure of mortgage of real estate be
maintained, where the note which it is given
to secure has been barred by the Statute of
Limitations 1t cannot be questioned, since
the decision of the Court in Arnold VS.. Nc
Kellar, SO. Ca, 1885, that the amendment to
Section 113 of the Code, (see Lynch's Code, p.
53,) as of the 25th of November, 1873, (see Acts
of Assembly of that year, Notwithstanding
the supposed irregularity of it's ratification
and the subsequent reenactment Of it in the
Acts of Assembly Of 1875, is valid and effectu-
al; and that sealed notes in South Carolina
are subject to the Statutory limitation Of six
years, as therein provided.
It is also true, as matter Of law, that this
action having been commenced in January,
Of the present year, that the Statutory bar is
complete, unless there be some existing cause
to prevent it's operation. No proof to this
effect was offered upon the trial, and no sug-
gestion of the kind was made in argument by
the learned counsel for the plaintiff, who in
sisted, with the support of many authorities,
that he was entitled to decree of foreclosure
of his mortgage, non obstante. The defendants
counsel, with equal zeal, as stoutly denied the
plaintiffs right in this regard.
The question thus presented is one of some
difficulty of determination, owing to the great
conflict of foreign authorities upon the sub
ject, Ito which 1 am forced to express my re-
gret that we are becoming so much addicted, J
as also on account of the apparent absence of
any direct adjudication of the matter by
our own Courts.
The plaintiffs counsel, with great propriety,
insists that the Statute of Limitations does
not discharge or extinguish the debt, but
only takes away the remedy for enforcing the
payment Ct it.
Since the case of Sturgess VS.. Crowninshield,
decided by the Supreme Court of the United
States as far back as 1919, and reported in
Wheaton, p. 122, and followed by numerous
decisions Of our own Court, this doctrine may
be accepted without question.
He further insists, and apparently with
equal confidence, that though the debt be
forced and to support this proposition, cites
Chapters 26 and 27 of Jones ON Mortgages End
Vol, and the numerous authorities there to be
found.
Upon the other hand, the learned counsel
for the defendant contends That in South
Carolina the mortgage is but an incident Of
the debt, deriving it's vitality and perpetuity
only from the debt itself, and that it cannot, in
the very nature of things, survive the substance
of which it is but the mere shadow that
the Act of 1791, so explicit in this regard, was
a departure from the English doctrine and has
wrought a fundamental change in the nature
and character of mortgages, and Of the means
of enforcing them that our own decisions
have steadily maintained this divergence cit
ting numerous authorities, among others ST.
mons vs. Bryce, 10 S. G.. r., 367 Warren VS..
Raymond, II S. G. R., p Reader VS. Dargan,
Ms, Supreme Court. And not with unbe-
coming confidence does he rely upon the opin-
ion of Dargan Ch., in Gibbes vs.. Holmes, 10
Rich. Ed, 4S7, in which that learned Judge
says eff mortgage be given to secure a sim
pie contract debt, when the debt is barred, the
mortgage is discharged. Anything that sat
isfies the debt discharges the mortgage"
Unfortunately for the defendant, however,
this is but oJiter dictun, as the question OF
which this would otherwise have been decis-
i've was not before the Court. Nevertheless,
as the positively expressed opinion of very
great Judge in his own times-and there were
giants in those days-it is entitled to great
consideration. The added expression above
"Anything that satisfies the debt" &C., seems
to me, however, greatly to weaken the force
Of the first proposition; for whatever conten-
ton there might be as to that, there never
could have been a doubt as to the second,
which clearly relates to satisfaction of the
debt-not to any suspension or abridgement
Of the remedy. Satisfaction is the whole
object, aim and end of the law in all things.
1 have ventured to say this much in the way
of respectful criticism, for the reasons that
the expression is very positive it was much
relied on by defendants counsel, and if other
reason be needed, it may be found in what
Judge Wardlaw said under like circumstances
in Mitchell VS.. Began Il believe) in venturing
to differ with Judge Mott.
1t might not be matter Of Improbable
speculation to enquire how far this express
sion may have been evoked by the peculiar
remedy for foreclosure, furnished by the Act
of 1871, which it will be remembered, was
proceeding at law, and was bottomed upon
Judgment being obtained in the Court of
Common Pleas" But I forbear. 1t sure
ly could never have been successfully contend
ed in South Carolina that the right of fore
closure in Equity, which became, long before
the abolition of the Court of Equity as such,
the universal mode of proceeding, was abso-
lutety dependent upon the character or quality
of the bond or debt intended to be secured.
In the case of Gillet VS.. Powell, Speare's
Ed, p. 143, property was sold and bonds and
mortgages taken. for the purchase money.
Foreclosure of one of these was sought, and
it was discovered that the bond had been
altered in a material part and thereby made
void. There was no reference in the mort
gage to the bond as produced in it's mutiated
condition Ch. Harper, in delivering the Cir
cult decree which was affirmed on this point
by the whole Court, said: ''But am of opin-
ion that the alteration of the bond does not
affect the mOrtpape and that it must be taken
as evidence of the debt If the mortgage
alone had been taken, there can be no doubt
hut that it would have constituted speciality
ln,1r 10 onardad o. q