May 26, 1926. The opinion of the Court was delivered by The plaintiff respondent purchased a tract of land on the representations of his grantor that there were only two mortgages upon the land, for specified amounts, and the debts secured by these mortgages were assumed by the respondent and were to be paid by him as a part of the purchase money. It afterwards developed that there was a third mortgage upon the premises. The respondent sold the land to another with covenants of warranty, and there was a recovery against him on his warranty, in the sum of $3,604.27. The respondent has brought suit against James N. Pearman, a former Clerk of Court of Anderson County, and American Surety Company of New York, the appellants, alleging that he purchased the land relying upon the representations made by his grantor and relying also upon the verity of the records in the Clerk's office, and that, owing to the failure of the Clerk of Court to have the third mortgage indexed, he had no means of knowing that there was such a mortgage, and that failure to index it resulted in his damage in the sum stated, and for this he brings suit against Pearman and his surety. The defendants have appeared and denied liability, claiming that if the respondent did not have actual notice of the mortgage, he had at least constructive notice of it, and that in any circumstances the appellants are not liable to answer in damages. Upon the conclusion of all the testimony, the plaintiff moved for and obtained a directed verdict for the full amount demanded in the complaint, and from the judgment entered, this appeal is brought to this Court.
Few authorities are cited by the counsel either for appellant or respondent, and there is not any conflict between the counsel as to the law governing the principles sought to be established. The issue must be settled by an examination of the testimony. *Page 547
Counsel for appellant has correctly stated that even if certain parts of the testimony, standing alone, would entitle the plaintiff to a directed verdict, nevertheless such verdict could not be directed if the inference from all the testimony would not entitle the defendant to such instruction, citing Dantzler v. Cox, 75 S.C. 334; 55 S.E., 774. Statev. Abelson, 108 S.C. 356; 94 S.E., 872.
The credibility of the witnesses and the weight of the testimony is for the jury. Taking all the testimony, this Court cannot say that only the one inference can be drawn from it. Therefore the case should have been submitted to the jury to pass upon the testimony.
To recite the testimony without attempting to comment upon it would not be profitable, and we have no power to comment upon it without invading the province of the jury, and therefore we have not attempted to cite any of the testimony.
The judgment appealed from is reversed, and a new trial is granted.
Reversed.
MESSRS. JUSTICES WATTS and BLEASE concur.
MESSRS. JUSTICES COTHRAN and STABLER dissent.
MR. CHIEF JUSTICE GARY did not participate.