April 8, 1901. The opinion of the Court was delivered by This is an action by which the plaintiffs seek to have a mortgage adjudged null and void, as a could upon their title to land, and in which the defendant, as an individual, resists plaintiffs' claim and seeks to have a mortgage foreclosed as upon the said land of plaintiffs. All the issues of law and fact were referred to L.A. Wittkowsky, Esq., as master for Kershaw County. The master took all the testimony, and his report on all the issues was admirably done. This report of the master should be reported in full. When the report and exceptions came on to be heard by his Honor, Judge Klugh, although he modified some of the conclusions of law embodied in the master's report, he reached the same opinion on the plaintiffs' equities as did the master, and accordingly adjudged that the mortgage be cancelled by the clerk of the Court as null and void. From this decree the defendant has appealed, and the plaintiffs, in accordance with the established practice, have served notice of the grounds they will urge before this Court, in case defendant's exceptions should prevail, why the errors *Page 229 of the Circuit Judge, if corrected by this Court, will lead to the affirmance of the decree.
For reasons which we will subsequently give, we prefer to pass at this time upon these grounds submitted by the plaintiffs:
"I. That the mortgage in question was made by a married woman, and the defendant in this action, upon whom the burden of proof rested, failed to produce any testimony to show that said mortgage was a contract which the married woman was competent to make; and that the finding of the master upon this point, concurred in by the Circuit Judge, is entirely without any evidence to sustain it." It is quite true that Mrs. A.E. Singleton was a married woman when she made the mortgage in question, and that it was the duty of the defendant to show by proof that such debt when created was to be paid by the mortgagee out of her separate estate, or, in other words, that the debt was created for her separate estate (Habenicht v. Rawls, 24 S.C. 461) . The testimony shows, that prior to 1891, to wit: in 1889 and 1890, the returns of property, both real and personal, for taxation represented all the property as that of Robert Singleton, the husband of Mrs. A.E. Singleton, and the latter had no property returned for taxation; but that afterwards, in 1891 and 1892, all the property, real and personal, was listed in the name of Mrs. A.E. Singleton for taxation, during which time the husband made no return of property for taxation. Not only so, but that the return for taxation by Robert, the husband, and A.E., his wife, each for himself and herself, showed that there was a stock of merchandise, though not of a large amount. And also the testimony of the Charleston merchant or merchants showed that Robert, while he held the property, ran an account for merchandise, and also that the wife, Mrs. A.E. Singleton, did business with them in the purchase of goods; that at one purchase on 21st September, 1891, Mrs. Singleton paid as much as $275 in cash. The bond and mortgage were executed in September, 1891. Both these parties, Robert *Page 230 Singleton and his first wife, Mrs. A.E. Singleton, are dead, and so also is the mortgagee, Holland. There was no testimony that Mrs. A.E. Singleton had a dollar in money when she executed the bond and mortgage. Such being the case, it is very natural that Mrs. A.E. Singleton should have borrowed this money for her separate estate. We will not disturb this concurrent finding of the Circuit Judge and master.
"II. That his Honor, the Circuit Judge, should have held that the covenant of warranty in the deed of Robert Singleton to H.C. and John A. Singleton covered the whole premises embraced in said deed, and not only one-third thereof, said covenant of warranty being entire and unconditional, and there being no evidence to the contrary, if the same had been competent; and that his Honor erred in attempting to apply rules of equity to the construction of a written instrument which should have been given its full legal effect." To understand this ground of appeal, we will state the facts which gave rise to the question. Robert Singleton's first wife, Mrs. A.E. Singleton, departed this life intestate in June, 1893, leaving her husband and the plaintiffs, her only children, her heirs at law. He soon afterwards married the defendant, Mrs. Esther Singleton. It may be readily supposed that this circumstance angered the two sons, Howard C. Singleton and John A. Singleton, who were the only children of the marriage of Robert and A.E. Singleton. At any rate, we find that they quarreled as to the division of her landed property. Peace was, however, restored on 4th January, 1894, by an agreement of the father to accept a deed of two-thirds of the house and lot now in controversy by Howard C. and John A. Singleton to him for life; he already owned one-third thereof, and then he in turn agreed to convey by deed to Howard and John Singleton the whole property (house and lot), to take effect at his death. Both deeds were executed on that day. A general warranty was given in each deed, although he, Robert Singleton, did not specify in his *Page 231 warranty that it was intended to include a warranty against any and all incumbrances; yet in this State — certainly since the case of Jeter v. Glenn, 9 Rich., 374 — a general warranty includes a warranty against incumbrances. The Circuit Judge restricted the general warranty as including a warranty against incumbrances on the property covered by the deed to apply only as to the third part owned by the husband. It seems to us that the conclusion of the Circuit Judge in this particular is correct, under the circumstances of this cause; for he, Robert Singleton, had received a title from his two sons with the same general warranty, and as the title he conveyed to them was after, in point of time, their conveyance to him, he only conveyed as to their two-thirds such title as he got from them. This exception is overruled.
"III. That his Honor should have held that the evidence showed that the defendant, Esther Singleton, was a party to an actual fraud perpetrated upon the plaintiffs by Robert Singleton, in misleading them by misrepresentations as to the mortgage of A.E. Singleton, and that she could not for that reason set up said mortgage against the plaintiffs." Fraud is a word of serious import in the law; but when the word "actual" is placed in conjunction with it, is far more serious. We fail to find in the "Case" by the testimony one single word uttered by this defendant at the time the execution of the mutual deeds between Robert Singleton and the two plaintiffs on the 4th January, 1894, or before that time, which could have misled the plaintiffs. Not only was there absence of misrepresentation by her, but no act of hers except renouncing her dower on the deed of Robert Singleton to his two sons, the plaintiffs, was proved by the testimony to have been committed by her. This exception is overruled.
We now come to the consideration of defendant's grounds of appeal, which are as follows: "I. That his Honor erred in holding that Esther Singleton was in any way bound by the concealment and representations made by Robert Singleton in reference to the Holland mortgage, or *Page 232 that she was estopped by these concealments and representations from setting up the said mortgage against the plaintiffs and from foreclosing said mortgage." We think the Circuit Judge went too far, in holding the defendant responsible for the concealment and representation made by Robert Singleton in regard to the Holland mortgage, as we trust we will be able to point out by a brief reference of the facts on this branch of the case. When Robert Singleton and his two sons, the plaintiffs, were discussing their business differences, the testimony fails to show that the defendant was present. It is true, the father told what was not true, when he assured them that the mortgage was paid. This was on the 4th day of January, 1894. At that date Robert Singleton did not disclose the fact that he had paid the mortgage debt in full and had taken an assignment of it to himself, and that in December, 1893, he had assigned said bond and mortgage to the defendant. She did not say the mortgage was paid. Never did the defendant utter one word at this settlement. She was not asked if she held by assignment such bond and mortgage. By the testimony, such a subject was never discussed in her hearing. How, then, could she by act, by word, or by silence, mislead any one? Such being the case, the Circuit Judge was in error, and this exception is sustained.
"2. That his Honor erred in holding that the assignment of the Holland mortgage to Esther Singleton was concealed by Robert Singleton from his sons, in order to induce them to execute the deed to him. 3. That his Honor erred in holding that Esther Singleton was present when the transaction took place between Robert Singleton and his sons, and that she knew what it was and that she was a party to the concealment or representations." The second exception is overruled. By the testimony, Robert Singleton intended to do what he did to perpetrate a bold fraud on his two sons. We sustain the third exception. There was no evidence that she was present, that she knew *Page 233 what they were doing, or that she was a party to the concealment.
"4. That his Honor erred in directing the clerk of court to enter a cancellation on the record of the mortgage of A. E. Singleton to Woodward Holland." In discussing this exception, we propose to give our views of how the equities here involved affect parties to this action. It will be remembered that the master has found, and the Circuit Judge has concurred in that finding, that Robert Singleton used $83.70 of the money borrowed by his wife from Holland under the mortgage. Interest on this sum from 21st September, 1891, to 21st October, 1893, is $13.90, aggregating on 21st October, 1893, $97.60. The mortgage debt amounted on 25th October, 1893, to $843.20, one-third of $843.20 is $281.07. Add $97.60 to $281.07 amounts to $377.67. Deduct this $377.67 from the amount due 21st October, 1893, leaves a balance of $465.53. This amount of $465.53, with interest at eight per cent. per annum to 7th April, 1901 ($265.31), is $730.84, for which sum the defendant is entitled to have her mortgage foreclosed. It is admitted that Robert Singleton took the bond and mortgage on 21st October, 1893, which on that date amounted to $843.20; at that date he owned one-third of the real estate in controversy. Consequently, on that date, one-third of the bond and mortgage, amounting to $287.07, was paid by operation of law, leaving only $562.13 of the mortgage debt after deducting one-third thereof, as paid by operation of law. But in addition to this, it was found by the master and Circuit Judge that on 21st September, 1891, Robert Singleton had used $83.70 of the wife's money of the bond and mortgage. Therefore, on 21st October, 1893, this sum of $83.70, at eight per cent. interest, amounted to $97.60. By deducting this from $562.13, there will be left on 21st October, 1893, a balance of $465.53. This, with eight per cent. interest to 7th April, 1901, will amount to $730.84. Since the cases of C., C. A.R.R. ads. Agnew, 24 S.C. 18, and Agnew v. Renvick, 27 S.C. 562, there can be no *Page 234 doubt that in this State, the law is that merger takes place when one who is the owner of the land purchases an incumbrance upon that land, and that thereby the incumbrance is destroyed. In the case at bar, the title to this house and lot in Camden, on the death of Mrs. A.E. Singleton intestate, immediately vested in Robert Singleton, the husband, and the plaintiffs, Howard and John Singleton, as the only heirs at law of the said Mrs. A.E. Singleton, deceased, one-third in each. So that on 21st October, 1891, Robert Singleton's one-third interest in that land was bound by one-third of the mortgage executed by Mrs. A.E. Singleton to Holland. When Robert Singleton paid the whole mortgage debt, $843.20, to Holland out of his, Robert's, own money, Robert's one-third of said $843.20 was paid by operation of law, leaving only two-thirds of said $843.20 still due. But it is also true, that of the two-thirds of said mortgage debt, to wit: $562.13, Robert Singleton was not entitled to hold the same in its entirety; for on the 21st September, 1891, he had used $83.70 of the money borrowed by his wife, and the plaintiffs were entitled to have such sum of $83.70, and interest thereon from 21st September, 1891, to 21st October, 1893, at eight per cent. per annum (which was $13.90), both sums amounting to $97.60, credited upon said $562.13; which when due would only leave $464.53 still due on said mortgage. This, we must remember, was the condition onthe 21st October, 1893. But on 15th December, 1893, Robert Singleton assigned for good, not valuable, consideration the said bond and mortgage to the defendant, Mrs. Esther Singleton. This he had the right to do. And we have held that bond and mortgage must be reduced, as we have before indicated, because, while these credits were notactually credited upon the bond when Mrs. Esther Singleton had them assigned to her by her husband, Robert Singleton, on the 15th December, 1893, yet she was obliged to take them subject to all the infirmities to which they were subject while in the hands of Robert Singleton as her assignor. InPatterson v. Rabb, 38 S.C. at page 152, it is said: "That *Page 235 under our law, an innocent assignee of a chose in action under seal takes such chose in action subject to all the infirmities in and against his assignor." This doctrine merely binds her to take the bond and mortgage subject to such infirmities as existed against her assignor, Robert Singleton, at the date of the assignment to her, on the 15th December,1893. She is not bound by anything which may have occurred by and through her assignor after that date. Hence the fraud of Robert Singleton practiced on the plaintiffs on the 4th January, 1894, unless she had participated therein, and we have hereinbefore determined that she did not so participate, will not affect her. The mere fact that she did not have her assignment placed upon record at that time, cannot affect her. She was not bound to do so. InWilliams Co. v. Paysinger, 15 S.C. 171, this Court held: "Notice to a mortgagor of the assignment of a mortgage is not necessary to its validity. There is no law requiring the assignment of a mortgage to be recorded, and if it had been put of record, it would not have amounted to constructive notice." In adjusting the equities of the plaintiffs as against Robert Singleton prior to 15th December, 1893, there is only one matter which disturbs us, and that matter has not been suggested in the case at any point, and that is as to the plaintiff's right to have the personal property of their mother which went into the hands of Robert Singleton in excess ofhis one-third share thereof before the 21st October, 1893, credited upon this bond and mortgage; for if the said Robert Singleton received more than his one-third share thereof, such excess ought to be credited on this bond and mortgage. If he did so appropriate to his own use more than one-third of such personal property, he actually converted to his own use the property of these plaintiffs, and to such an extent his claim through this bond and mortgage was entitled to be reduced. Our only reason for mentioning this latter possible condition of things is that equity delights in completeness — she wishes to dispose of the whole and not by piecemeal. The testimony showed that Mrs. E.A. Singleton had *Page 236 a considerable personal estate, as was disclosed in her returns for taxation; and such being the case, there is no evidence before the Court that this matter was ever settled between the parties; his (Robert's) administratrix, Mrs. A.E. Singleton, is a party to this action, as such administratrix. The only settlement before the Court between the father and sons is as to the land. In the abundance of caution, when after awhile we adjudge that Mrs. Esther Singleton, as an individual, is entitled to a judgment of foreclosure of her mortgage to the extent of $730.84, we will annex to such decree the right of the plaintiffs, if exercised within thirty days after the remittitur in this cause reaches the Circuit Court, to notify in writing the defendant, as an individual, and as administratrix of Robert Singleton, deceased, that they elect to show by proof that Robert Singleton used more than one-third of the personal property of Mrs. A.E. Singleton after death, without the consent of the plaintiffs, and such excess of his one-third share shall be credited, as of the 15th December, 1893, with interest thereon at seven per cent. per annum from that date to the 7th day of April, 1901, on the $730.84 decreed to defendant.
The fifth and sixth exceptions of defendant are as follows: "5. That his Honor erred in not holding that the mortgage of A.E. Singleton to Woodward Holland was assigned to Esther Singleton before the transactions between Robert Singleton and his sons, and was in no way affected by these transactions. 6. That his Honor erred in not ordering a foreclosure of said mortgage and a sale of the premises covered by said mortgage." These exceptions are sustained, having already been passed upon in effect.
It is the judgment of this Court, that the judgment of the Circuit Court, wherever the same is inconsistent with the views herein expressed, be reversed. It is further adjudged by this Court, that the defendant, Esther Singleton, is entitled to recover the sum of $730.64, and interest thereon from 7th April, 1901, at seven per cent. interest from that date, by a foreclosure of her mortgage on the lands described *Page 237 in the complaint; but to such judgment in her favor is annexed the condition that if the plaintiffs give to her, or her attorneys, within the thirty days first ensuing after the remittitur reaches the Circuit Court, notice in writing that they propose to show in this action that her assignor and her intestate, Robert Singleton, used more than a one-third part of the estate of his wife, Mrs. A.E. Singleton, and shall afterwards by proofs establish such fact, that then and in that event the excess over his said one-third part of the personal estate of his deceased wife, shall be entered as a credit on the sum of $730.64 herein adjudged defendant as a part payment thereof, or in whole payment thereof, as the case may be, with interest on such excess over the said one-third part from the 15th December, 1893, at seven per cent. per annum. But if the plaintiffs refuse or neglect to take any such steps within the said thirty days, then and in that event the defendant may enforce her judgment according to law.