Marshall v. Creel

The opinion of the court was delivered by Mr. Chiee Justice MoIver. The plaintiff brough this action for the foreclosure of a mortgage of real estate, given to secure the payment of a bond conditioned for the payment of the sum of $176.90^ which was given by defendant to one Jas. S. Simmons, and by him assigned to one S. G. Pierce, and by said Pierce to the plaintiffs. The only defence relied upon was payment, not to plaintiffs, but to the first assignee, Pierce. The testimony was taken by the master under an order of the court, and by him reported to this court, and upon the testimony so taken the case was heard by his honor, Judge Ernest Gary, who rendered his decree, finding that there was due on the bond by the defendant the sum of $216, and accordingly he rendered judgment of foreclosure. From that judgment defendent appeals upon the following grounds: “1st. For that the presiding judge was in error in not holding that the mortgage debt had been paid in full. 2d. For that the presiding judge -was in error in finding that there was $216 due on the bond and mortgage sued on. 3d. For that the presiding judge was in error in not dismissing the plaintiff's action and ordering the bond and mortgage sued on can-celled. 4th. That the presiding judge was in error in adjudging and decreeing that should the plaintiffs, or either or any of them, become the purchaser, that the master do make title to him or them upon the payment of the costs and disbursements.” [485] It is very manifest that the first three grounds are entirely too general to call for any consideration at the hands of this court. They might, for all practical purposes, be embraced in a single exception — because the Circuit Judge erred in not sustaining the defence of payment set up by the answer; and surely such an exception would not be entitled to be considered by this court. No specific error is pointed [486] out, and these exceptions would involve the necessity of retrying the case upon the testimony upon which it was heard by the Circuit Judge. This certainly is not to be expected of an appellate tribunal. But, in addition to this, all these grounds turn entirely upon questions of fact, and, under the well settled rule of this court, the conclusions of fact reached by the Circuit Judge will not be disturbed, unless without any testimony to sustain them or manifestly against the weight of the testimony. This we certainly cannot say in this case. There were no credits endorsed upon the bond or mortgage, and no evidence of any specific payments thereon, for although defendant spoke of having receipts which were in the hands of his own counsel, yet no such receipts were produced or accounted for, and no statement of the amount or dates of any of them. Indeed, the whole testimony rested upon the loose statements of the witness, Pierce, who had assigned the bond and mortgage to plaintiffs; which, if true, showed that he had committed a fraud upon the plaintiffs in assigning to them a bond which was substantially paid. What the seizure of the defendant’s mule by other creditors, Brown & Co., had to do with this case, it is difficult to see. We are unable to perceive any error, on the part of the Circuit Judge in the conclusions which he reached on the question of payment. 3 As to the fourth ground of appeal, we are unable to discover any error of law therein complained of, and none has been pointed out in the argument. The provision in the judgment which is here assailed is not an uncommon one. If the plaintiffs, who are entitled to the proceeds of the sale, after payment of costs and expenses, become the purchasers of the land, why should they go through the useless form of paying the money with one hand and receiving it back with the other? If it be said that the error was in making this provision apply to a purchase made by any or either of the plaintiffs, still we are unable to perceive the error — for any or either of the plaintiffs would be eutitled to receive and receipt for the money, and that was manifestly what was meant by this provision in the order of sale. [487] The judgment of this court is, that the judgment of the Circuit Court be affirmed.