June 20, 1918. The opinion of the Court was delivered by This is the third appeal in this case. See 101 S.C. 499, and 107 S.C. 115. The action was for the possession of personal property, claimed under a chattel mortgage given to plaintiff by defendant. Defendant denied all the allegations of the complaint, and alleged that the parties had had dealings with each other for a number of years, and that payments had been made for which credit had not been given, and that plaintiff had overcharged defendant. The pleadings were not verified.
Plaintiff gave due notice, under the provisions of section 4001, vol. I, Civil Code, that he would offer in evidence *Page 138 the original mortgage, without formal proof of its execution, on the ground that the subscribing witness had removed to and was residing at Florence, ninety miles from the place of trial. That section provides that the production (without other proof) of original instruments of writing (other than wills) which are required by law to be recorded, when duly recorded, and the record thereof has been certified by the recording officer, shall be prima facie evidence of their execution and recording, provided ten days' notice be given of intention to so introduce them; and section 4002 provides that section 4001 shall not apply, when such an instrument is attacked on the ground of fraud in its execution, provided ten days' notice of such ground be given by pleading or otherwise, duly sworn to. Defendant gave no notice of his intention to attack the mortgage on the ground of fraud in its execution. On the contrary, the mortgage had been introduced at each of the former trials without any intimation or suggestion of any fraud in its execution. Moreover, the defendant himself testified at both the former trials and at this trial that he executed the mortgage without intimating that there was any fraud in its execution. His contention has been throughout the litigation that it covered all his indebtedness to plaintiff, while plaintiff's contention has been that it did not include a balance of $275 due him on a real estate mortgage which he held against defendant. It follows that there was no error in allowing plaintiff to put the mortgage in evidence, without formal proof of its execution by the subscribing witness.
Plaintiff testified that the real estate mortgage was given to him in 1906, and the amount due thereon, in 1910, was about $875. At that time defendant sold part of the land, with his consent, for $600, and that amount was paid on the real estate mortgage, leaving a balance due thereon of $275; that from year to year, for a number of years, he had advanced money to defendant to make his crops, or had assisted him to get it by endorsing his note at bank, and *Page 139 defendant had secured him by giving him chattel mortgages; that the mortgage given each year included any unpaid balance due on the mortgage of the previous year, and that, on February 11, 1913, they had a settlement, and it was found that defendant owed him a balance of $314.82, which included all that defendant owed him at that time, except the balance of $275 on the principal of the real estate mortgage debt; that the mortgage under which the property herein sued for is claimed was given for that sum; and that sometime later, on March 3, 1913, defendant made arrangements to borrow money from a bank at Orangeburg on his real estate, and paid him $314.82, of which amount he credited $275 on the real estate mortgage and marked it satisfied; and credited the balance, $39.82, on the chattel mortgage, and gave defendant receipts for those amounts, which defendant introduced in evidence. The receipt reads: "3-3-13. Received from Wm. Haynes two hundred seventy-five and no-100 dollars, full settlement of bond and mortgage of Wm. Haynes to me, dated April 12, 1906;" and "3-3-13. Received from Wm. Haynes thirty-nine and 82-100 dollars, to be credited on note and mortgage of Wm. Haynes to me for $314.82. Balance of $275 due October 1, 1913 — $275 is all Haynes owes me on act chattel mortgages or otherwise." Defendant admitted that these receipts were drawn up by his attorneys in their office and signed by plaintiff at the time the $314.82 was paid to him. Nevertheless, he testified that the chattel mortgage covered his entire indebtedness to plaintiff, and that the payment of $314.82 was in full satisfaction of it.
In order to show that the balance due on the real estate mortgage had been included in the chattel mortgage of February 11, 1913, defendant undertook to show that he had paid in full the chattel mortgage of $400 given to plaintiff in 1912, and introduced two receipts, one dated October 3, 1912, for $250, and one dated November, 1912, for $150. Plaintiff testified that defendant did not pay him $250 on *Page 140 the mortgage of 1912, but that his books showed a payment of that amount on October 3, 1911, on the mortgage of that year, and that he gave defendant a receipt for it which was written with a lead pencil on a piece of brown paper, and that the date had been changed from 1911 to 1912.
The Court charged the jury in substance that the chattel mortgage showed prima facie that defendant owed plaintiff $314.82, and that the burden was upon defendant to prove that the debt had been paid; but that if he proved that so much was not due, and that he had in fact paid all that was due on the mortgage, their verdict should be in his favor.
Defendant preferred two requests to charge, which, together with the remarks of the Court thereupon to the jury, will be reported. The jury found a verdict for plaintiff, and from judgment thereon, defendant appealed.
The foregoing statement of the evidence, rulings and charge is sufficient to show that there is no merit whatever in the exceptions which will be reported.
Judgment affirmed.