The opinion of the court was delivered by
Mr. Chief Justice Simpson.In February, 1881, Pelzer, Rodgers & Co., factors in Charleston, agreed verbally to make advances to G. E. Steadman during that year, in money or supplies, to the am out of $2,000, with interest from the dates of the advances at seven per cent, per annum, and also commissions at five per cent. Steadman was a merchant at Blackville, S. 0., dealing in cotton; and it was stipulated in the agreement, as a part of the consideration thereof, that Steadman should send to the factors, for sale on commission, all the cotton he might control in his business during the current year. This agreement was made upon the understanding that Mrs. Alice A. Steadman, the wife of G. E. Steadman, to secure the performance of his portion of the .agreement, should execute a mortgage of her separate estate to the factors. Accordingly, in February, 1881, Mrs. Stead-*285man executed to the plaintiffs the mortgage mentioned in the complaint, covering certain real estate in Barnwell County, in which mortgage, after reciting the agreement between the plaintiffs and Steadman, and expressing her willingness to assist him, she duly conveyed the property to the plaintiffs, with condition that the deed should be void if Steadman should pay, or cause to be paid, to plaintiffs, said sum of $2,000, on November 1, 1881, and should further fulfil his said engagement to ship to said factors, for. sale on commission, all the cotton he might control in his business during the current year.
At the date of this mortgage it appears that Steadman was indebted to the plaintiffs in the sum of $946.95, balance on the accounts of the previous year; but whether Mrs. Steadman knew of this, is not stated. The plaintiffs advanced to Steadman, during the year $2,758.31, subject to a credit of $475.37 ; so that at the close of the business year, July 1, 1881, the accounts stood $946.95-f-$2,758.31=$3,705.26 — $475.37=$3,229.89, to which interest was added to November 1, 1881, at which date total amount was $3,432.35, for which Steadman gave his note under seal, payable on November 1, 1881. This note embraced the $946.95 of the previous year, also advances under the agreement, $2,000, and additional advances $758.31, and interest from July 1, to November 1, 1881, less the credit of $475.37. On the note appeared a credit $1,714,65, dated April 14, 1882, which was a balance in favor of Steadman on transactions between July 1, 1881, and December, 1881.
Under these circumstances the action below was brought against G. E. Steadman and Alice, his wife, to recover against him individually the amount due for advances, and to foreclose the mortgage given by her. The defendant, Alice, answered, claiming that her husband had shipped to the plaintiffs all of the cotton under his control during the year, to an amount considerably in excess of the two thousand dollars, interest and commissions agreed upon, and therefore the mortgage was discharged. She further alleged that the agreement was usurious, as more than seven per cent, had been stipulated for on the advances. The defendant, Geo. E. Steadman, adopted the answer of his wife. *286The case was heard by Judge Witherspoon upon testimony reported by the master.
It was conceded that Steadman had complied with his contract to ship all the cotton under his control, and that the proceeds of this cotton amounted to considerably moi-e than the $2,000, secured by the mortgage. Nor was there any difference between the parties as to the amount remaining unpaid of the $2,000 secured by the mortgage, if the proceeds of the cotton should be applied first to the portions of the account, other than that. The vital question in the case, therefore, to Mrs. Steadman was how should this cotton money be applied; if to the mortgage, then her defence was sufficient and successful, but if to the entire account, then there was a balance due by her. There was nothing in the testimony showing that Steadman, the debtor, gave any directions as to the application of the proceeds of the cotton. Pie sent it forward under the agreement; it was sold by the factors, and the proceeds applied by them. It was contended, however, on the part of the Defendants, that the agreement, when construed with reference to the rights of Mrs. Steadman, as surety or guarantor, required the application of the proceeds of the cotton to the advances secured by her mortgage. On the other hand the plaintiffs claimed that there was no appropriation growing out of the terms or intent of these papers, of these proceeds, but that they Avere left open and to be applied in conformity with the principles of law governing such cases, which being applied, entitled the plaintiffs to a large decree, i. e., the sum of $1,594.52, all interest being excluded under the plea of the admitted usury ; Steadman having failed to direct the application of the cotton, either when it Avas consigned or afterwards, and the plaintiffs having applied it first to the unsecured portion of the account.
His honor, Judge Witherspoon, concluding under all the circumstances, that it Avas the intention of the parties that the advances Avere to be made from February 1, to November 1, 1881, and that the payments made during that period, by the principal debtor, Avere to be applied first to the extent of the $2,000 and interest secured by the mortgage, and it appearing that Steadman was credited with payments during the same *287period more than enough' to extinguish the $2,000, found as matter of fact, that the mortgage was satisfied. He found also, as matter of fact, that Steadman was still due the plaintiffs individually the sum of $1,826.70. He therefore adjudged and decreed that the complaint be dismissed with costs as to the defendant, Alice Steadman, but that plaintiffs have judgment against Gr. E. Steadman for the sum of $1,826.70 with interest from April 14, 1882, and costs.
The appeal of the plaintiffs involves the finding of fact of his honor that the mortgage was satisfied, based upon the intent of the parties that the proceeds of the cotton should be applied to the $2,000. The defendant appeals from the finding of fact that he was indebted to plaintiffs in the sum of $1,826.70, and he also alleges error in that his honor decreed judgment against him individually for any amount in this action when it was upon a special agreement set forth in the complaint, which had been complied with, and therefore the outside indebtedness was not involved and should not have been adjudicated. Further, the defendant under the principle that a judgment may be sustained on appeal upon other grounds than those upon which it was based by the judge has urged that the debt of defendant was satisfied by the sealed note given by him in full of the account in June, 1881, and therefore the mortgage given to secure said account was extinguished, as held by the judge. And he also contended that the whole account was extinguished, and therefore there was no foundation for that portion of the decree which allowed judgment against Steadman.
This court has frequently declared that it will not disturb the findings of fact of the Circuit judge resting upon testimony, unless it is manifestly against the weight of the evidence ; and if the finding here involved in the plaintiffs’ appeal was a finding as the result of evidence introduced and directed to a question of fact, the rule referred to would apply. But it is manifest that this is not the case. The judge evidently reached his conclusion, not through the fact of payment proved by witnesses, but through the construction placed by .him on the terms of the mortgage, showing, as he concluded, the intent of the parties; which required in his opinion' the application of the proceeds of the cot*288ton to the $2,000 advance. Now the construction of a paper in litigation betAveen parties is not a question of fact for the jury, but is ahvays a question of law for the court. So that the finding of fact of the judge, as it is styled, on this subject, Avas really a finding of law, or at least the result of a finding of laAv ; and therefore it is before us as any other question of laAv, untrammeled by the rule referred to above.
It is practically conceded by his honor below that if this case was not complicated Avith the presence of Mrs. Alice A. Steadman, the surety, and if it Avas simply a case betAveen creditor and debtor, under the law as laid down in Williams & Co. v. Vance & Moseley, 9 S. C., 344, and Bell v. Bell, 20 Id., 46, and other cases, there Avould be no difficulty whatever, as the facts would clearly entitle the plaintiffs to recover through a decree of foreclosure. But a distinction is attempted to be drawn betAveen a case of that kind and this, because of the suretyship in this of Mrs. Steadman. Does that difference negative the application to this case of the principle which it is admitted would apply to the first ? It is true the law requires on behalf of the surety fair dealing between the creditor and debtor. It was said in Tinsley v. Kirby, 17 S. C., 1, that in determining the liability of a surety it must not be forgotten that “he is a favorite of the laAv, and has the right to stand on the strict terms of his obligation when such terms are ascertained.” Hence there can be no extension of time, not a moment, nor can there be the slightest change or alteration made in the contract Avithout the knoAvledge and consent of the surety. Hence, too, all securities and collaterals deposited by the debtor with the creditor on account of the debt, must be held for the protection of the surety; but we have found no case or principle which requires that the contract shall be construed in one way as against the principal and in another as against the surety.
Now what Avas the contract of Steadman ? It appears in the recitals of the mortgage, and it was simply to pay the amount to be advanced, $2,000, by November 1, 1881, thereafter, Avith interest and commissions, and to ship to the plaintiffs all the cotton under his control during that current year, to be sold on commission. Mrs. Steadman’s mortgage was intended to secure *289the performance of this contract on the part of her husband. In other words, she bound her land to the twofold promise of Stead-man, i. e., that he would pay the $2,000, interests and commissions, by November 1, 1881; and also that he would ship all cotton to the plaintiffs, not for the payment of the $2,000, not as additional and collateral security thereto, but to be sold on commission. The plaintiffs were satisfied with the mortgage of real estate as a security for the $2,000, and the stipulation as to the shipment of the cotton was evidently in furtherance and support of their business as factors, selling cotton and other produce on commission. And if, as we have said, the contest here was between Steadman and the plaintiffs alone, there could not be a difference of opinion as to the construction of this contract, and no one would contend that either by the terms or the spirit of said contract could Steadman legally claim that the proceeds of the cotton should be applied to the $2,000 advance in preference to his other indebtedness to plaintiffs, if any. Under the law he might direct such application, but in the absence of such direction he could not claim it as a matter of legal right growing out of the terms of the agreement.
Such being the proper construction of the agreement as between the original parties, where then is the equity of the surety ? And by the term equity, let it be understood that we do not mean the unfortunate condition in which Mrs. Steadman has placed herself, at the solicitation perhaps of her husband — a hard ease for her, no doubt, as she is likely to lose her home — but we mean that equity which flows from established equitable principles, and which the courts can administer. We would not have been displeased to have found such an equity in the case, as we know how easy and natural it is for a wife to pledge her all in behalf of a failing husband, oftentimes without examination or reflection ; but after carefully reviewing the whole case, we must say that we have not found it. According to our opinion, the contract or agreement must be construed to mean the same thing with the surety as with the principal. It is an entirety, and cannot bear a double signification. As we construe it, there was no appropriation of the cotton to the advance of the $2,000 secured by the mortgage. Hence in plaintiffs’ failing to thus *290apply it, it cannot be said that they have changed, altered, or modified the contract, or that they have diverted to other purposes securities or collaterals deposited or pledged by the debtor for its enforcement, to the injury of the surety, or that they have violated any other recognized equity of the surety. As to the application of partial payments by a creditor, in the absence of directions from the debtor, we need only to refer to the recent case of Bell v. Bell, 20 S. C., 46.
This brings us to the question raised by the defendant, that the sealed note given by him June 30,1881, and due November 1, extinguished the entire account, including that for the advance of $2,000, and therefore the mortgage was satisfied. The law upon that subject, as found laid down in the recent case of Chalmers v. Turnipseed, 21 S. C., 126, after discussing the previous cases, is as follows: Where an equal or an inferior security is taken, a question of fact is raised as to the intent of the parties, with the burden of proof on the debtor to show that it was intended as payment, if he so claims; whereas when a higher security is taken, in the absence of testimony to the contrary the law will imply satisfaction. Turnipseed v. Chalmers, supra, and the cases there cited.
In the case before the court, it seems that a sealed note was taken, which was a higher security than the open account, and in the absence of testimony would imply satisfaction; but Stead-man himself, in his testimony on the cross-examination, said more than once that this note was given to close the account. To use his own language, at one place he said: “gave them a paper to close the account, but whether it was a sealed note or not cannot remember.” Now, does this come up to the law of Gardner v. Hust, 2 Rich., 608, cited in Turnipseed v. Chalmers, where it is said “that in general the taking of a higher security is an extinguishment of the same, provided the higher security is accepted as satisfaction; and if not so accepted, then it is merely additional or cumulative security for the same debt” ? AVith the evidence of the defendant, Steadman, before us, we think that the note was neither intended to extinguish the account nor was it accepted as payment and in satisfaction thereof, but was in*291tended, as Steadman says, merely to “close it” and to acknowledge its correctness, and must be regarded as cumulative security.
The second objection of defendant, which applies to the judgment against him individually, might and perhaps would be fatal had we sustained above the decree of his honor, the Circuit judge, as to the satisfaction of the mortgage; because then there would have been nothing left in the complaint upon which such a judgment could have been based, inasmuch as the complaint assumes that the credits of Steadman had been properly applied to the other account in excess of the $2,000. The plaintiffs, therefore, sued only for the amount remaining unpaid on the $2,000 advance secured by the mortgage, assuming that the balance of the account has been paid. We have reached the conclusion different from the Circuit judge that the $2,000 had not been extinguished, and it being a subsisting debt of Steadman, as well as secured by the mortgage of Mrs. Steadman, the plaintiffs are entitled to an individual decree against Steadman and also a foreclosure of the mortgage.
The usury is admitted, therefore all interest should be eliminated. This the plaintiffs have offered to do, by remitting all of the decree in excess of $1,594.52, which seems to be the principal of the amount really due, without interest. For this amount, we think the plaintiffs are entitled to judgment against G. E. Steadman without costs, and that the mortgage should be foreclosed for that amount.
It is the judgment of this court that the plaintiffs should have judgment against G. E. Steadman for $1,594.52, and also a judgment of foreclosure against Mrs. Alice A. Steadman for the same amount; the payment of one being the satisfaction of both, all without costs; and to this extent the judgment below is modified. Let the case be remanded to be carried out in accordance with the above.