Porter v. Jefferies

Citations

• 40 S.C. 92
• 18 S.E. 229
• 1893 S.C. LEXIS 11

Syllabus

<p>1. Evidence — Written Instruments. — It is not competent to prove by an attorney who prepared a mortgage — whether he represented both parties or only the mortgagee — that the executors who executed the mortgage then considered the land mortgaged to be the property of their testator, there being no charge of fraud. The mortgage must speak for itself.</p> <p>2. Ibid. — In action to recover on the breach of warranty' contained in a mortgage of testator’s land executed by the executors under a power in the will, where a portion of this land had been recovered by testator’s widow in an action to which all of the parties to this action were parties, testimony as to the widow’s title, and as to the disposition of the crops raised on the land, and as to the value of a part of the land purchased by the mortgagee at the foreclosure sale, was either irrelevant to the issues here involved or immaterial.</p> <p>3. Evidence — Harmless Error. — Reversible error cannot be imputed to the admission of a question to a witness, even if incompetent, where his answer was not incompetent because a mere repetition of what he had previously testified to without objection.</p> <p>4. Personal Covenant by Executors. — The covenant of warranty contained in a mortgage of testator’s lands executed by his executors under a power in his will, binds the executors personally.</p> <p>5. Mistake — Pleadings—Evidence.—The allegations of this answer were not sufficient to raise the issue of mistake in the execution of the mortgage; and there was, therefore, no error in excluding testimony as to a mistake.</p> <p>6. Ibid.- — Mortgage.—Where executors execute a mortgage containing their personal covenant, supposing that they are binding only their testator’s estate, their mistake is as to the proper construction of a written instrument, against which the Court of Equity will not give relief.</p> <p>7. Estoppel — Attorneys.—These executors having represented all the land embraced in the mortgage to be t