Powell v. Pearlstine

Citations

• 43 S.C. 403

Syllabus

<p>1. Notice to Produce — Secondary Proof — Evidence in Reply. — After a party, called upon by proper notice to produce a paper in his possession, has refused to produce it, and the opposite party has introduced secondary proof of its contents, the party so refusing cannot be permitted to introduce secondary evidence as to its contents, nor to introduce the paper itself.</p> <p>2. Ibid. — Ibid.—Ibid.—Testimony De Bene Esse — Attorneys—Case Criticised. — This rule applies to a case of alleged fraudulent alteration of a mortgage, in which the testimony was ordered to be taken by the master, and the mortgage was offered at the taking of testimony de bene esse, after the refusal to produce it at a reference before the master on the responsibility of the attorneys for the party in possession, it being doubtful whether documentary evidence can be introduced at the taking of testimony de bene esse of witnesses other than subscribing witnesses (as was not the case here, and parties being bound by the acts of their agents). This case distinguished from Marshall v. Marshall, 42 S. C., 436.</p> <p>3. A Point Not Raised on Circuit need not be considered on appeal, but considered here, as no objection was made to its consideration.</p> <p>4. Fraudulent Alteration of Mortgage — Debt.—The fraudulent insertion by the mortgagee of a second tract of land in his mortgage, renders the mortgage void as to the tract mortgaged as well as to the tract inserted; but it may be that the debt, secured by the mortgage, is not extinguished by the fraudulent alteration of the mortgage.</p> <p>5. Attorney’s Costs — Liquidated Contracts. — Under the statute abolishing attorney’s costs, except in “actions now pending,” or in case of then existing liquidated contracts, an attorney is not entitled to costs in an action instituted after the passage of this statute, to cancel a mortgage given to secure a liquidated contract of a date prior to the statute, as the action was not upon the contract, but in