Bank of Swansea v. Williams

The opinion of the Court was delivered by Mr. Acting Justice J. Wm. Thurmond. *133 This action was instituted by the Bank of Swansea against Annie Williams, on a note and mortgage, dated May 8, 1920, due October 1, 1920, for $1,705, executed by Mrs. Annie Williams to A. P. Jackson, and recorded December 3, 1920, at Lexington. The defendants are Annie Williams, F. E. Huffman, A. P. Jackson, and Batesburg Cotton Oil Company. Mrs. Annie Williams was the only defendant that answered. The mortgage covered 103 acres of land, fully described in the complaint. A. P. Jackson executed to the Bank of Swansea, on May 27, 1920, his note for $1,705, payable October 1, 1920, and assigned as collateral the note and mortgage aforesaid of Mrs. Annie Williams to him for $1,705. January 22, 1920, Mrs. Annie Williams and F. E. Huffman executed a note to P. J. Williams for $300, payable November 1, 1920. P. J. Williams indorsed this note, which was secured by mortgage of 103 acres of land, the same as that above. A policy of insurance was issued against .loss by fire to Mrs. Annie Williams on a house located on the said 103 acres of land with a loss payable clause to the Bank of Swansea for the period beginning June 17, 1923, and ending June 17, 1924. Mrs. Annie Williams executed a note to the Bank of Swansea on December 3, 1921, for $2,325. The house on the land mortgaged was burned and the insurance monéy, $1,250, was paid to the Bank of Swansea in August, 1923. The bank applied the insurance money on a note for $2,-325, covering all the indebtedness of the defendant Mrs. Annie Williams to said bank; but this note included other indebtedness and obligations besides the mortgage indebtedness due on the $1,705 note and mortgage, and some of the obligations evidenced by the $2,325 note were unsecured, and the insurance money was applied as aforesaid by the *134 bank on the whole indebtedness. The foreclosure proceeding in this case is to collect the balance due said bank on the note and mortgage on said tract of land for $1,705, executed by Mrs. Annie Williams to A. P. Jackson, and by him assigned to the bank. There is only one cause of action stated in the complaint, and that is based on the note and mortgage for $1,705 aforesaid. At the close of the testimony, the plaintiff attempted to amend his complaint so as to demand judgment on the other obligations claimed by it against Mrs. Annie Williams, but the trial Judge in his discretion refused to allow the amendment, and this Court cannot say that his discretion therein was abused. The findings of fact and conclusions of law by the Circuit Judge on the controverted questions in the case were decided in favor of Mrs. Annie Williams. From the decree of the Circuit Judge, the plaintiff has appealed to this Court, and served seven exceptions, which raise practically three issues : (1) As matter of law, should the insurance money have been applied to the said mortgage indebtedness of Mrs. Annie Williams to the Bank of Swansea, or did said bank have the right to apply said insurance money on the $2,325 note. The case of McSween v. Windham, 104 S. C., 519; 89 S. E., 500, is conclusive against the plaintiff on this point. (2) Did Mrs. Annie Williams waive the application of the insurance money to the $2,325 note to said bank? Waiver is a voluntary relinquishment of a known right. Crosswell v. Connecticut Indemnity Ass’n, 51 S. C., 476; 29 S. E., 236; 40 Cyc., 252. The trial Judge found in favor of Mrs. Annie Williams on this question, and this Court cannot say that the finding was against the clear preponderance of the evidence. The matters referred to in exceptions 5 and 7 are taken care of at folio 70 of the Court’s decree, and the rights of the plaintiff are fully protected by that decree. *135 (3) Raises the question of duplicate credit to Mrs. Annie Williams. Exception 6 contends that Mrs. Annie Williams was given a duplicate credit of $276, but this contention of the plaintiff cannot be sustained, and the amount found by the Circuit Judge to be still due on the $1,705 note and mortgage appears to be practically correct; hence the judgment of the lower Court is affirmed. Messrs. Justices Besase, StabeEr and Carter concur.