Montague v. Stelts

Citations

• 37 S.C. 200
• 15 S.E. 968
• 1892 S.C. LEXIS 20

Syllabus

<p>1. Findings on Pact concurred in by referee and Circuit Judge, and supported by testimony, approved.</p> <p>2. Bailee—Collaterals—Diligence.—Where a creditor receives from his debtor, as collateral security, claims against third persons, the creditor becomes a bailee, and must use ordinary diligence, such as persons usually exercise in reference to their own matters, in endeavoring to collect the collaterals ; and is responsible for losses resulting from his failure so to do.</p> <p>3. Ibid..—Ibid.—Ibid.—Action.—In such case the debtor is not compelled to claim damages for the negligent loss by separate action or counter-claim, but may interpose it as a defence to an action by the creditor, and, under such defence, require an accounting for the collaterals deposited.</p> <p>4. Commencement on Action.—An action is commenced when the summons is lodged with the sheriff with the intent that it shall be'actually served.</p> <p>5. Note and Mortgage—Attorneys’ Fees.—Defendant gave two notes, stipulating for the payment, also, in the event of suit, of “attorneys’ fees to the extent of ten per cent, of amount due at time of suit,” and a bond of same, date conditioned for the payment of said two notes according to their “tenor, true intent, and meaning,” and then a mortgage of same date, to secure the payment of this bond, containing a covenant “to pay all attorneys’ fees and commissions at the rate of ten per cent, on the amount for which such foreclosure may be had.” Held., that defendant was liable for ten per cent, of the amount due when action was instituted, as called for by the notes, and not for only ten per cent, of a less amount for which foreclosure was ordered, there having been intermediate payments.</p> <p>6. Application op Payment.—Where the mortgagor transferred to the mortgagee reut Hens on crops of the mortgaged premises, the mortgagee may apply the proceeds of collection to unsecured claims held by him against the mortgagor, the mortgagor having given no