Kaphan v. Ryan

Citations

• 16 S.C. 352
• 1882 S.C. LEXIS 4

Syllabus

<p>1. A judgment Is valid, although not filed until more than sixty days after the last day of the term of .court at which the cause was heard.</p> <p>2. Parol testimony may be received to prove an agreement in which a written instrument originated and of which it constituted only a part. Thus, where a note was given for a sum certain, payable at a day certain, secured by mortgage, but no money passed, and it is admitted by both parties that these instruments were a security for future advances, it may be shown by parol what the agreement -was, and -what the bond and mortgage were intended to secure.</p> <p>Ü. Where, by consent, a law case is tried by the judge without a jury, his findings of fad'cannot be reviewed by this court.</p> <p>4. In an equity cause the findings of fact reached by a Circuit judge from direct testimony involving the credibility of witnesses, are rarely overruled.</p> <p>•5. A. and B. gave- their note and a mortgage of B.’s lands, to secure advances to be made to them in their business, carried on in the name of C., and, for a balance afterwards due on account of sncli advances, B. gave a note payable at one day, with interest until paid — the creditor retaining the first note and mortgage. Held, that the mortgage was not discharged by the note of B., and that the mortgagee might foreclose for the amount stated in B.’s note, as the liquidated balance due on his account, at the date of such note, together with interest according to its terms.</p> <p>ii. In action for foreclosure, -where defendant appeared and litigated, the judge may decree foreclosure for the real amount due on the note, although, from an error in the calculation of interest, the complaint demanded judgment for a less sum. It was in substance the allowance of an amendment to the complaint in this particular.</p>