headed; also, all crops grown on above plantation, this deed of mortgage to be void only upon payment of said amount, otherwise to remain in full force, with the right to the said M. L. Timmons to foreclose and sell according to law in such case made and provided. Fourth. The party of the second part agrees with the parties of the first part, in consideration of the advances so made and to be made by her to him, that he will send to her for sale on commission the entire crop of cotton, rice, and other salable products made on said plantation, and in default thereof he will pay to her a commission of two and a half per cent. on the estimated value of such cotton, rice, and other products not sent to her for sale; and, further, the party of the second part gives the parties of the first part a lien on the entire crop for said commission, in the same manner as for the advances previously named; and, in case the said R. W. Turner shall in any way attempt to seek to evade the performance of the stipulations herein set forth to be done or observed by him, or any one or more of them, then he shall be deemed to be about to defeat the lien hereinbefore provided for. Fifth. The party of the second part binds himself to send, prior to January next, to the parties of the first, sufficient cotton, rice, or other salable products to pay all advances. Sixth. That party of the second part further agrees that, in case legal measures are taken towards the enforcement of the lien or foreclosure of mortgage, all costs and expenses incident thereto, including attorney's fees, shall be due and collectible, as if they were part of the same. In testimony whereof, the parties hereto have hereunder set their hands and seals, the day and year first above written. M. L. Timmons. [L. S.] R. W. Turner. [L. S.] Sealed and delivered in the presence of R. H. Hatchell." "Exhibit C. "Judgment on Verdict: The issues in this action having been brought on for trial before Mr. Justice W. C. Benet and a jury at a circuit court held on the 16th day of September, 1896, and the issues having been tried, and a verdict for the defendant having been duly rendered, on the 26th day of September, 1896, and their costs having been adjudged at sixty-one 70/100 dollars: Now, on motion of Johnsons, Dejongh & Hanckel, attorneys for said defendants, it is adjudged that said R. W. Turner, defendant, recover of said M. L. Timmons, plaintiff, the sum of sixty-one and 70/100 dollars costs, together with the six stacks of rice straw seized on behalf of plaintiff herein; or, in case the same cannot be delivered, then the sum of twelve no/100 dollars, together with the cow, valued by the jury at twenty-five dollars; and, if delivery of the same cannot be had, then the sum of twenty-five dollars, and the red and buttheaded yearling, valued by said jury at five dollars; or, in case the same cannot be delivered, then the sum of five dollars ($5.00), together with the three banks of potatoes seized by said plaintiff herein; or, in case de livery of same cannot be had, then the sum of twelve dollars, together with the seventyfive bushels of corn seized by plaintiff herein: or, if the same cannot be delivered, then the sum of forty-eight 75/100 dollars, together with two stacks of fodder seized by plaintiff herein; or, if the same cannot be delivered, then the sum of five dollars, together with one white cow, valued by said jury at twelve dollars, and the red butt-headed yearling, valued by said jury at five dollars; or, if de livery of the said cow cannot be had, then the sum of twevle dollars; and, if the delivery of the said yearling cannot be had, then the sum of five dollars, together with one steer, three years old, red and butt headed, seized by plaintiff herein; or, if the same cannot be delivered, then the sum of ten dollars. [Seal.] J. W. McCown, C. C. C. P. Nov. 20, 1896." ence. "Exhibit D. "State of South Carolina, County of FlorKnow all men by these presents, that, in consideration of the sum of one hundred and thirty dollars to me advanced in supplies by G. A. Norwood & Co., of Charleston county, said state, have bargained and sold unto the said G. A. Norwood & Co. the following personal property: (1) one mule, (1) one ox, (2) two cows and calves, (6) six hogs, now in my possession, and which I promise to deliver on demand of the said G. A. Norwood & Co. I agree that this shall stand good for any amount I may at any time be owing G. A. Norwood & Co. In witness whereof I have hereunto set my hand and seal this 10th day of February, A. D. 1893. R. W. Turner. [L. S.] E. C. Turner. D. C. Turner." "State of South Carolina, County of Florence. Personally appeared before me, D. C. Turner, and made oath that he saw R. W. Turner sign, seal, and execute the within written instrument, for the use and purposes therein mentioned, and that he subscribed his name as a witness thereto. Sworn to before me, this 16th day of February, A. D. 1893. D. C. Turner. J. W. McCown, C. C. C. P. & G. S." "We hereby transfer all our right and interest to within bill of sale to M. L. Timmons, without recourse on us, for salable consideration. G. A. Norwood & Co." On the back of said bill of sale is: "Recorded this 21st day of February, A. D. 1893, in Chattel Mortgage Book D, page 162. Register Mesne Conveyance." The following are the grounds of appeal: "First. Because his honor erred in overruling defendants' demurrer, when the law court in which a recovery has already been had afforded an adequate remedy. Second. Because his honor erred in overruling defendants' demurrer, inasmuch as a court of equity has no jurisdiction to review a case heard in a court of concurrent jurisdiction. Third. Because his honor erred in overruling defendants' demurrer, thereby causing equity to violate the rules of law to give relief. Fourth. Because his honor erred in overruling defendants' demurrer, and in not holding that all of the issues involved in this suit in equity had been fully and fairly tried at law, and that the verdict of the jury in the law court was conclusive of all issues involved. Fifth. Because his honor erred in not sustaining defendants' demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action, because it neither gives the charge, nor purports to give the substance of the charge, of the presiding judge. Sixth. Because his honor erred in overruling defendants' demurrer, and in not holding that all of the facts relied upon by plaintiff are res adjudicata." Johnsons & Wells and Julius H. Evans, for appellants. Willcox & Willcox, for respondent. POPE, J. This is an appeal from the order of Judge Buchanan at September, 1898, term of court of common pleas of Florence county, overruling a demurrer by the defendants to the plaintiff's complaint, on the grounds that the court did not have jurisdiction, and that the complaint failed to state facts sufficient to constitute a cause of action. The complaint, with its exhibits, will be reported. From the complaint it seems that the plaintiff brought a former action of claim and delivery, as the holder of the mortgage executed by the defendants' intestate, R. W. Turner, to the plaintiff, to secure a debt of $150.12, and that, when such action came on for trial before Judge Benet and a jury, in September, 1896, and on the ground that such mortgage debt was not due when the action was commenced, and that the action was premature, under the charge of Judge Benet to that effect, the jury found a verdict in favor of the defendant R. W. Turner; that the cause of action of plaintiff's present action is to recover the sum of $150.12, with interest thereon from 28th February, 1894, which sum was due for advances made by the plaintiff to the said R. W. Turner in his lifetime, and for the sum of $60.47 paid to the firm of G. A. Norwood & Co., at the said R. W. Turner's request, for the assignment to her of the bill of sale executed by R. W. Turner to said G. A. Norwood & Co., in 1893, for one mule, one ox, two cows and calves, and six hogs, which were at that date in the possession of the said R. W. Turner, and that said bill of sale is now held and owned by the plaintiff; that R. W. Turner departed this life after the present action was commenced; and that the defendant D. C. Turner has been duly appointed the administrator of his personal estate. The six grounds of appeal presented to the order of Judge Buchanan raised but two questions: First, did the court have jurisdic tion to try this case? and, second, did the complaint state facts sufficient to constitute a cause of action? Let the grounds of appeal be reported. In the first, second, and fourth grounds of appeal, the appellants use language from which one would infer that they meant to assert that a court of law and a court of equity still exist as separate courts. But such is not the case. The same court-the court of common pleas-now exercises, under the constitution of the state, both jurisdictions. It is quite true that the principles of equity still subsist in all their pristine splendor and are enforced in the court of common pleas, and it is also true that the common law, in all of its rugged strength, still leads to the exercise of the right of a trial by jury; but one court now does for both. The circuit judge gave no reason for his conclusion that he had jurisdiction to try the case, but no doubt he was able to see no force in the suggestion of a want of jurisdiction in the court of common pleas to try the case now at bar, because, as suggested by the appellants, it would be a court of equity upsetting the judgment of a court of law. The complaint does not suggest such a course. It makes the jurisdiction of the court of common pleas to try the cause depend upon the allegation that plaintiff has never had before any court the cause of action now presented. The circuit judge would have admitted, if he had dreamed a different conception existed touching his assertion of full jurisdiction in the court over which he presided to try the present action, that such jurisdiction did not arise by reason of the court of common pleas, in the exercise of its equity powers, having the right to either control or supervise proceedings or actions which legitimately belonged for trial to the common-law powers exercised by the court of common pleas, but, on the contrary, that the present was a new action, with no connection with any previous action. The exceptors can gain nothing from their grounds of appeal as to the jurisdiction of the circuit court. We will now dispose of the questions suggested by the grounds of appeal relating to the want of facts in the complaint sufficient to constitute a cause of action. When we remember that, in the case of a demurrer, all the allegations of fact which are material are, for the purposes of the demurrer, deemed to be admitted by the person who demurs, we are made to realize that, no matter how strong the defenses not included in the demurrer may be to plaintiff's cause of action, they are, for the time being, lost to the demurrant. The demurrer must stand or fall upon the allegations of fact in the complaint. Now, then, when reduced to its final analysis, what do we find these allegations of fact in the complaint to be? Simply this, that the plaintiff, having a cause of action against the defendant Turner's intestate for claim and delivery of certain personal property under a mortgage of said personal property to secure a debt of $150.12 due to the plaintiff, brought in action to enforce the said cause of action, and, because the mortgage did not have its condition broken, the circuit judge, Benet, held to the jury that the plaintiff could not recover, and the jury accordingly returned a verdict for the defendants. Such are the allegations of the present complaint, and, as before stated, the defendants, for the purposes of their demurrer, admit these facts. When we examine the present complaint as to its cause of action, we find that the plaintiff does not seek a retrial of the issue as to a claim and delivery arising from a chattel mortgage, but she seeks a recovery of a debt for supplies furnished to the said R. W. Turner for which he gave an agricultural lien, and for a debt which the plaintiff holds against the defendants' interest by reason of the bill of sale executed by the defendants' intestate to G. A. Norwood & Co., and never held by the plaintiff. This court has repeatedly held that such an action can be maintained. Wagener v. Kirven, 52 S. C. 34, 29 S. E. 390; also, Stoddard v. McIlwain, 9 Rich. Law, 451; Sease v. Dobson, 34 S. C. 345, 13 S. E. 530. It would be a sad day for the cause of justice if an honest debt could be swept out of existence, so far as the right to sue for the same is concerned, simply because an action had been prematurely brought on a mortgage given to secure such debt. In the case cited from 9 Rich. Law, supra, the plaintiffs had been cast in the suit on three notes given for a debt, simply because they were not able to prove at the trial that the person who acted as agent of the defendant in signing the defendant's name to such notes was really defendant's agent, with power to sign the notes in question. So they brought suit on the account of goods sold and delivered. When the defendant pleaded res adjudicata as an estoppel, the court unanimously held that the first suit was no estoppel. It is useless to multiply words on this subject. These exceptions must be overruled. But again, we say our judgment merely extends to the demurrer, and not to any defenses the defendants may by answer submit. It is the judgment of this court that the judgment of the circuit court be affirmed. (56 S. C. 313) BANK OF COLUMBIA v. GADSDEN. (Supreme Court of South Carolina. July 10, 1899.) SET-OFF-ASSIGNMENT OF CLAIM-NOTICE- 1. Code Civ. Proc. § 133, provides that the assignment of a thing in action shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment. A defendant testified that he did not have notice of an assignment until payment was demanded. There was no evidence of a demand other than the bringing of a suit on the assigned claim. The evidence showed that defendant's right to a set-off accrued before the commencement of the suit. Held, that the set-off accrued before defendant received notice of the assignment. 2. Under Code Civ. Proc. § 133, which provides that the assignment of a thing in action shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment, the burden of showing that the assignment of a past-due mortgage on which the suit is brought was made before the accrual of a set-off in favor of defendant and against the assignor rests upon the plaintiff. 3. Code Civ. Proc. § 94, provides that the objection that an action was not commenced within the time limited can only be taken by answer. Section 174 provides that a plaintiff, except on defendant's notice, is not required to reply to new matter in the answer, not constituting a counterclaim. Section 89 provides that new matter in the answer not relating to a counterclaim is deemed to be controverted by the adverse party as on a direct denial or avoidance, as the case may require. Defendant in an action by the assignee of a mortgage past due when assigned to plaintiff set up an offset in his favor and against plaintiff's assignor. Held, that as such plea is purely defensive, and does not entitle defendant to affirmative relief, plaintiff can urge the statute of limitations against such setoff, though he did not formally plead it. 4. The running of the statute of limitations is not prevented, as to a payment made by a surety on a mortgage indebtedness, by the indorsement on a summons in an action subsequently brought to foreclose the mortgage, by the principal debtor, of an agreement to indemnify the surety against any loss on the mortgage and the execution and delivery to the surety of a mortgage of other property, reciting the making of the mortgage, and conditioned that it shall be void if the principal shall pay the mortgage bond, and save the surety harmless thereon, when there is no reference to the payment previously made by the surety, as the agreement to indemnify will be construed to apply to loss or damage accruing after the execution of the agreement. Gary, A. J., dissenting as to part. Appeal from common pleas circuit court of Fairfield county; George W. Gage, Judge. Action by the Bank of Columbia against F. M. Gadsden. From a judgment in favor of plaintiff, defendant appealed. Modified. Ragsdale & Ragsdale, for appellant. H. Lyles, for respondent. W. JONES, J. This action was for foreclosure of a real-estate mortgage executed by defendant, Gadsden, to W. R. Doty & Co., March 12, 1884, assigned by Doty & Co. to John C. Gadsden March 27, 1896, after maturity of the note which it secured, and some time afterwards transferred by John C. Gadsden to the plaintiff bank as collateral to secure a loan of money. Defendant set up as a special defense: "(1) That at the time of the assignment of the note and mortgage described in the complaint by John C. Gadsden to the plaintiff the same was long past due, and the plaintiff took the same subject to all equities between the defendant and the said John C. Gadsden. (2) That at the time of the assignment of the note and mortgage to the plaintiff by the said John C. Gadsden, as aforesaid, he was indebted to the defendant for money paid by the defendant for him at his request, and for his benefit, in an amount exceeding the amount due on the note and mortgage set forth in the complaint, and the plaintiff can now have no claim against this defendant on the said note and mortgage." Under this defense no question having been raised as to its definiteness, defendant established that as surety for John C. Gadsden on a bond secured by a mortgage of real estate belonging to the defendant and John C. Gadsden, executed to D. R. Flenniken in May, 1884, which was afterwards assigned to John J. Hemphill, he (defendant) paid to Hemphill thereon $250, February 3, 1886, which was duly credited on the bond. Afterwards Hemphill brought suit to foreclose his mortgage and obtain a decree of foreclosure in October, 1896. The decree provided that the land of John C. Gadsden should first be sold, but, in case the proceeds thereof be insufficient to pay the mortgage debt, then to sell the land of F. M. Gadsden. After the sale of the tract of John C. Gadsden, the deficiency was $161.55, which the defendant F. M. Gadsden paid February 20, 1897. These two payments as surety are interposed as an equitable set-off or defense against recovery in this case by John C. Gadsden's assignee. The circuit court held that neither claim could be set off, and the appeal now involves the correctness of the rulings of the court in reference thereto. 1. We will notice first the question raised as to the payment of the $161.55, February 20, 1897. The assignment to plaintiff was shortly after March, 1896, and the action was commenced March 15, 1897. In reference to this matter the ruling of the circuit court was as follows: "The defendant can plead any set-off existing between him and John C. Gadsden before notice to defendant of the assignment. Code Civ. Proc. § 133. It does not appear when defendant got notice of the assignment. The defendant testified about that matter. He said he had no notice of the assignment until plaintiff 'demanded payment.' It does not appear when payment was demanded. Suit was begun March 15, 1897. If defendant did not know of the assignment on 20th February, 1897, he can set off the payment then made. Whether he had not such notice was a fact for him to prove." The court therefore held that this set-off could not be allowed. We think this was error. In the first place, assuming that the burden of proof rested on defendant to show that his set-off accrued before notice of the assignment, he testified that he had no such notice until payment was demanded, and the only evidence of any demand for payment was the bringing of the suit, which was after the payment of the amount claimed. Without any other evidence to the contrary, this was evidence sufficient to show that payment was made before notice of the assignment. But we think the burden of proof rested on the plaintiff, as an assignee of a past-due chose in action, to show not only that the assignment, but that the notice thereof to the maker or obligor, was prior to the accrual of the alleged set-off against the assignor. This seems to have been the rule previous to the adoption of the Civil Code of Procedure. Newman v. Crocker, 1 Bay, 247; Brown v. Rees, 2 Tread. Const. 498; Tibbetts v. Weaver, 5 Strob. 144; Jervey v. Strauss, 11 Rich. 383. Section 133 of the Code provides: "In case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment," etc. We do not construe this as casting upon a defendant alleging a set-off the duty of establishing that the set-off accrued before notice of assignment. He makes a prima facie defense when he establishes a set-off against the assignor accrued at the commencement of the action, which plaintiff may rebut by showing that the setoff accrued after the notice of the assignment. In the case of Harvin v. Galluchat, 28 S. C. 217, 5 S. E. 359, this court said: "It is laid down in all the authorities upon the subject of assignment of unnegotiable paper (Story, Pomeroy, and in numerous cases) that, in order to protect his rights under an assignment, the first duty of the assignee is to give notice to the debtor. A failure to do this is at the peril of losing the debt, either by a subsequent assignment to another party, or new defenses arising between the assignor and the debtor, or a payment by the debtor to the assignor." This set-off, having accrued against plaintiff's assignor before notice of the assignment, should have been allowed as an equitable defense to the extent of the payment, with interest to the time of payment. 2. The claim to set off the $250, February 3, 1886, was rejected by the circuit court on the ground that the claim was barred by the statute of limitations, the action having been commenced by the plaintiff March 15, 1897. Appellant contends that plaintiff, not having formally pleaded the statute of limitations, could not avail itself of this defense against this set-off. We do not think this point is well taken. Section 94 of the Code of Civil Procedure does provide that "the objection that the action was not commenced within the time limited can only be taken by answer," but this could apply to a plaintiff only when called upon to answer or reply to a strict counterclaim or set-off asserted as a cross action against the plaintiff. A counterclaim "must be one existing in favor of the defendant and against the plaintiff between whom a several judgment might be had in the action." Defendant did not have a cause of action against the plaintiff. While his plea in the nature of a counterclaim or set-off against the plaintiff "standing in the shoes" of the assignor, and the sufficiency of such plea on question made, should be tested by the rule which would govern if the defendant were actually suing the assignor on the setoff as a cause of action, still, in this case, the plea of set-off is purely defensive, going merely to defeat plaintiff's recovery, and not authorizing any affirmative relief against the plaintiff as in the case of a counterclaim or set-off by way of cross action. Hence defendant's plea of set-off is really matter of defense by way of avoidance. By section 174, plaintiff, except on defendant's notice, is not required to reply to new matter in the answer not constituting a counterclaim, and by section 189 new matter in the answer not relating to a counterclaim "is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require." As the statute of limitation is matter in avoidance, it is, therefore, available to a plaintiff ore tenus against defendant's equitable defense founded on an alleged cause of action against plaintiff's assignor. 3. Was the alleged set off of $250 barred by the statute? We have had some difficulty in reaching a perfectly satisfactory conclusion in this matter, but we hold with the circuit court that this defense is barred. The defendant, by his pleadings, is not asserting any rights of subrogation to the securities of the creditor, Hemphill, which he paid either in whole or in part, and to the remedies attaching thereto. If his defense was founded on the bond and mortgage of 1884, or the judgment thereon in 1896, a different question might be presented; but by his answer he merely alleges an indebtedness to him by plaintiff's assignor for money paid for him at his request, and for his benefit. This alleges nothing more than a single contract as a foundation of a set-off against plaintiff's assignor. Treated as such, it was barred in six years. Treated as matter for relief not otherwise provided for in preceding sections, it was barred in 10 years under section 118. This payment as surety for plaintiff's assignor was made more than 10 years before relief sought. When he made this payment, a cause of action accrued in his favor against his principal, John C. Gadsden, and the statute then commenced to run against it, and bars action thereon, unless something has occurred to prevent. Appellant here contends that an agreement in writing, and an indemnity mortgage executed by John C. Gadsden to defendant on March 20, 1896 (previous to the assignment of the note and mortgage herein to plaintiff), prevents the bar of the statute. Hemphill commenced an action to foreclose the bond and mortgage of John C. Gadsden and F. M. Gadsden, and on the back of the summons in said action John C. Gadsden, on March 26, 1896, acknowledged that he was the principal debtor on said bond and mortgage, and that F. M. Gadsden was only a surety, agreeing that John C. Gadsden's land should first be sold to satisfy the mortgage, and further containing this stipulation, "And I further agree to indemnify and save harmless the said F. M. Gadsden from any loss on said bond and mortgage." The indemnity mortgage executed on the same day recited: "Whereas, I, 33 S.E.-37 John C. Gadsden, did on the first day of May, A. D. 1884, make and deliver my certain bond of that date to D. R. Flenniken, whereby I promised to pay to the said D. R. Flenniken the sum of five hundred dollars in two equal installments from date; and whereas, F. M. Gadsden did, at my request, and for my accommodation, sign the said bond: Now, therefore, know all men by these presents, that, in order to indemnify and save harmless the said F. M. Gadsden from any loss or dam age on account of the signing by him of the said bond, or any renewals thereof that may hereafter be made, I have granted * * *: provided always, nevertheless, and it is the true intent and meaning of the parties to these presents, that if I, the said John C. Gadsden, do and shall well and truly pay or cause to be paid the said bond, and shall in all respects indemnify and save harmless the said F. M. Gadsden from any loss or damage on account of the signing by him of the said bond and mortgage, or renewals thereof, then this deed of bargain and sale shall cease, determine, and be utterly null and void; otherwise, to remain in full force and virtue." The circuit court held that these instruments did not constitute such an acknowledgment as to take the claim as to the $250 payment out of the statute of limitations, inasmuch as there is no reference in either instrument to such payment, no acknowledgment of the debt thereby incurred, and no promise to pay it. We concur in this ruling. A contract to indemnify and save harmless ordinarily and generally is designed to prevent or protect against loss or damage accruing subsequent to the instrument of indemnity, and, in the absence of clear language showing to secure for a loss already sustained by the indemnitee, cannot be construed to embrace such loss. The judgment of the circuit court is modified in accordance with the views herein announced. GARY, A. J. I dissent from so much of the opinion of Mr. Justice JONES as decides that the alleged set-off of $250 was barred by the statute of limitations. (55 S. C. 551) GARRISON v. CITY OF LAURENS et al. (Supreme Court of South Carolina. July 20, 1899.) MANDAMUS-COLLECTION OF TAXES-PARTIES -PROPERTY OMITTED. 1. Mandamus to compel collection of taxes can only be prosecuted by a citizen and taxpayer; hence, where it is disclosed that during one of the years for which it was sought to compel col lection of taxes that relator was not a taxpay er, he is not entitled to relief for that year. 2. In placing upon books property omitted from levy for city taxes under a void ordinance exempting same, the values used for state and county taxes in such omitted years will control Mandamus by J. H. Garrison against the city of Laurens, the Laurens Cotton Mills, and others. On report of referee. |