Moffatt v. Hardin

Citations

• 22 S.C. 9
• 1884 S.C. LEXIS 2

Syllabus

<p>1. In action by assignees to foreclose a junior mortgage given to the deceased mortgagee by his grantee, a clerk of court, who held officially the senior mortgage given by such mortgagee, and as such made a party defendant, is not incompetent to testify to communications between himself and the deceased relating to the ownership of the mortgaged property ; especially where he has ceased to be clerk of court and owner of the mortgage.</p> <p>2. An attorney for a trust estate in a causo just ended was called upon by the trustee to draw a deed from the trustee to the cestui que trust, and a bond and mortgage in return, which he did without further charge, and signed his name to them as a witness. Held, that he might he called as a witness in a subsequent action to prove statements made at that time by the trustee to the cestui que trust in his hearing.</p> <p>3. Parol testimony is admissible to prove contemporaneous declarations of mortgagee explaining the uses to be made of the mortgage and the conditions of its existence.</p> <p>4. Parol testimony is admissible to explain a receipt.</p> <p>5. From the facts of this case, a mortgage by a cestui que trust to her trustee held to be entitled to a credit for an amount then in the hands of the trustee, for which he held a receipt, and for a further amount in the hands of the clerk of court belonging to the cestui que trust, for which the trustee held her order.</p> <p>.6, The testimony of a respectable witness as to transaction of years ago should not be disregarded because of his forgetfulness of the execution of a receipt between the parties at that time.</p> <p>7. The innocent assignees for value of such bond and mortgage, without notice of the credits to which the mortgagor was entitled, took these securities subject to the defences of the mortgagor against his mortgagee.</p> <p>8. This case distinguished from Scott v. Montgomery, 10 S. C., 449.</p>