Whitmire v. Boyd

1. Peeadings — Amendments.—A Compeaint in foreclosure of a purchase money mortgage may be so amended after testimony is in as to allege a cause of action for the purchase money of the land alone. 2. Estopped. — Claim of estoppel not sustained. 3. Vendor and Vendee — Read Property — Purchase Money.— Under the facts in this case, the vendor of land is not divested of his right to enforce payment of the purchase money out of the land, on account of his conveyance of the land to purchaser of the vendee, or after acquired liens. 4. Purchase Money — Mortgage.—The lien of a vendor of land on it for purchase money, is not affected by mortgage of vendee to third party and its record. 5. Consideration — Peeadings.—An Amendment during trial of an action in foreclosure so as to allege that the note sued on is without consideration, is improper but harmless error here, under the facts.

Before Aldrich, J., Greenville, April, 1898. Action in foreclosure by Thos. B. Whitmire v. H. Y. Boyd, B. M. McGee, Frank Hammond, W. A. Fowler, J. B. Red-wine and W. A. Hudson, trustee. The following is so much of the Circuit decree as is necessary to understand the issues and his conclusions thereon: This case comes before this Court upon the pleadings, order of reference, orders made by the master, the testimony taken by him, his report containing his conclusions upon the facts and the law, the exceptions of the plaintiff, and the exceptions of the defendants, H. Y. Boyd, W. A. Hudson, and B. M. McGee. These exceptions are quite numerous and long, and, taken together and so far as the parties excepting are concerned, practically reopen the case. I will, therefore, consider the case upon its merits, as far as it is necessary to do so, and my conclusions will dispose of the exceptions. To understand the,issues, it will be necessary to get a correct view of the facts. Plaintiff instituted this action for the recovery of judgment upon a note, sealed, and the foreclosure of a mortgage of real estate given to. secure the payment of said note. The said note and mortgage are forgeries. The land described in said forged mortgage was, in 1894, the property of the plaintiff. During the year 1894, the plaintiff verbally agreed with A. R. Fowler, defendant, above named, to sell the land in question to him. On May 22d, 1895, a written contract, under seal, and witnessed by two witnesses, was executed by plaintiff and said A. R. Fowler. This written agreement is to the effect that A. R. Fowler is “to have the use” of the land described in complaint, during 1895, and for said “use” said defendant agreed to pay to plaintiff, “on or before December 1st, 1895, $150.” This instrument then concludes in these words: “It is further agreed that if the said A. R. Fowler shall pay to the said T. B. Whitmire, on or before December 1st, 1895, $500, with interest from January 1st, 1895, at eight per cent, per annum, including the above $150, and shall execute to the said T. B. Whitmire a mortgage for $500, payable January 1st, 1898, on said land, bearing interest from January 1st, 1897, at eight per cent, per annum, then the said T. B. Whitmire shall execute and deliver to the said A. R. Fowler a warrantee [warranty] deed to said 188 acres of land.” A. R. Fowler put the defendant, H. Y. Boyd, in possession of the land in the latter part of December, 1894, and, thereafter, he continued in possession of the same. Prior to his moving upon the place, said Boyd had made a bargain with A. R. Fowler to purchase the lands from him. Fowler represented to Boyd that he was the owner of the land; but Boyd, having heard that plaintiff was talking of renting the land, went to see plaintiff whether or not he had sold the land to Fowler. Plaintiff told him he had sold it to Fowler, and said nothing about Fowler owing him anything on the sale. Boyd did not know that A. R. Fowler owed plaintiff the purchase money of the land until after he had taken a deed for the land from A. R. Fowler, and executed his note and mortgage to said Fowler. Said deed, note, and mortgage will be considered later on. After these transactions were completed, Boyd heard that A. R. Fowler owed plaintiff the purchase money of the land. The master states no conclusions upon these issues; but I think that the facts above stated are material, and that they throw a flood of light upon this cause, and other issues raised therein. These facts or conclusions are fully substantiated by the direct, positive, and unequivocal statements in the testimony of the defendant, Boyd; the statements of plaintiff, when directly questioned in reference to these facts, are uncertain, indefinite, and vague, and do not contradict the statements of Boyd; and the testimony of Boyd is in full accord with the established facts in the cause. On January 22d, 1895, A. R. Fowler, by formal deed of conveyance, duly conveyed the land in question to Boyd. This deed was duly made, executed, and delivered at the time stated. No doubt about ’that. The consideration therefor was: That Boyd was to take the land subject to an old mortgage for’f1,000 held by one McDowell, and to give to Fowler a note for $800, secured by a mortgage of the land. This Boyd did; for on the same day, to wit: January 22d, 1895, he gave to said Fowler his note, which read as follows: “$800. Fountain Inn, January 22d, 1895. On the first day of January, 1898, I promise to pay to the order of A. R. Fowler, $800, with interest at the rate of eight per cent, per annum from date till paid. Interest to be paid and computed annually. For value received, I agree to pay, in case this note is collected by suit, ten per cent, attorney’s fees! (Signed) H. Y. Boyd. [d. s.] Attest: W. A. Curry.” To secure this note, at the same time and place, Boyd executed and delivered to A. R. Fowler a mortgage of the aforesaid land. The said mortgage is in the usual form, and was duly recorded in the office of the register of mesne conveyance of Green-ville County, on February 9th, 1895. While it may not be material, it is proper to note, that the mortgage undertakes to recite the terms and conditions of the note it was given to secure; but in these recitals nothing is said as to the attorney’s fee. These transactions were all executed in good faith by Boyd, and he believed that they were honest and efficacious. As against A. R. Fowler, Boyd had a good title to the land. Fowler’s deed conveyed all the right, title, and interest he had therein to Boyd. It also conveyed any right, title or interest which Fowler might acquire in the land. Plaintiff said, in his testimony, and it is a fact in the case, that he made the bargain with Fowler, evidenced by their written agreement of May 22d, 1895, already stated, in 1894, or prior to the execution of the agreement. His exact words are: “I did not have any written contract with Mr. Fowler for the sale till May, 1895. Prior to that I had agreed to sell to him, and he had made a partial payment on it.” There is no doubt but that the contract for sale between plaintiff and Fowler as to the sale of the land, was made before the conveyance of Fowler to Boyd, and that the written agreement, evidencing that contract, was not executed until after Boyd’s purchase, viz: in May, 1895. As against plaintiff, Boyd stood in the shoes of A. R. Fowler. By complying with the contract, Boyd could have forced plaintiff to make the titles to him. Plaintiff could stand upon said contract, and have refused to execute a title until that contract was complied with and duly carried out, either by A. R. Fowler or H. Y. Boyd, as the assignee of Fowler. Again, and this is important, plaintiff and Fowler, or plaintiff and Boyd, or all of them, could, by consent, change or modify the aforesaid contract, and complete the transactions upon these changed or modified terms. Did plaintiff and Fowler afterwards change or modify the terms of the contract, agree thereon, and execute same? This issue, to be considered further on, is important. So far in the discussion of this case we have dealt with real facts. I regret to say, that criminal conduct, involving moral turpitude, seems, from this point onward, to enter the case. It is proper to say, and I take pleasure in stating, that A. R. Fowler alone, and no one else, a party to this action or otherwise, suggested, knéw of or connived at the crimes of said Fowler. Fowler, it is evident, was as smart and cunning as he was wicked and depraved. H. Y. Boyd, who seems to be an honest and good, but not specially bright man, was the brother-in-law of A. R. Fowler. In various ways he deceived Boyd, and, as we have seen, sold him the land mentioned. He took Boyd’s note and mortgage, forged copies of same, or what was intended to be copies, and disposed of these forged papers to honest men, for value. Fowler is now, as was stated in argument, a convict in the Georgia Penitentiary, undergoing sentence for crimes committed in that State. On February 19,1895, A. R. Fowler placed, as collateral security, in the hands of the defendant, B. M. McGee, the genuine note of Boyd to himself, herein-before set forth, and a forged copy of said mortgage. At the time stated, A. R. Fowler borrowed from McGee $400, and, as collateral security, assigned to him the Boyd note and forged mortgage. Mr. McGee knew of the old McDowell mortgage on the land, and refused to lend him the money unless he would get J. D. Harris to sign the note also. A. R. Fowler induced J. D. Harris to sign a note with him, dated February 19, 1895, for $400, payable to Mr. McGee on November 15, 1895, with interest after maturity at the rate of eight per cent, per annum; also for ten per cent, attorney’s fees, if the note had to be collected by law. At the foot of said note, and as a part thereof, these words are written, “and place as collateral security note and mortgage given me by H. Y. Boyd for $800 as it appears.” This note is signed by A. R. Fowler and J. D. Harris. On the back of the genuine note of H. Y. Boyd to A. R. Fowler, the names, “A. R. Fowler, M. J. Harris, J. D. Harris,” are indorsed. Mr. McGee took the notes above stated and the forged mortgage, and let A. R. Fowler have the money. No part of it has been paid. While the aforesaid genuine note was in the possession of Mr. McGee, he allowed A. R. Fówler to write upon the back thereof as follows: “Received on the within note $235, November 6,1895. A. R. Fowler.” Mr. McGee got no part of this money. Mr. McGee did not notify H. Y. Boyd that he held this note and mortgage until “the last of July or the 1st August, 1895.” It is evident that Mr. McGee holds the genuine note of H. Y. Boyd, as the assignee of A. R. Fowler. By the assignment of the note he also became the assignee of the legal or genuine mortgage. The rule of law is well established that the assignment of the bond carries with it the mortgage; but the assignment of the mortgage does not necessarily carry with it the bond. The bond represents the debt, while the mortgage is a mere security for the payment of ^uch debt. One is the principal, the other is the mere accessory; and-while the assignment of the principal carries with it the accessory, the assignment of the accessory does not carry with it the principal. Cleveland v. Co/tors, 10 S. C., 225, and the numerous authorities there cited; also, re Walker & Trenholm v. Kee, 14 S. C., 142; Wilson & Co. v. Dean, 21 S. C., 332. There is now due McGee $400, with interest thereon from November 15, 1895, at eight per cent, per annum, and ten per cent, on that amount as attorney’s fee, aggregating $526.49. On February 9, 1895, A. R. Fowler signed a paper as follows: “Received of W. A. Hudson, trustee, $50, and assign with him note and mortgage for $800 on H. Y. Boyd, due in 1898, if sold next week, say 16th February, agree to pay out of same $130 to Y. A. Norwood, $100 note and $20 note due said Hudson, and said $50 borrowed today. (Signed) A. R. Fowler.” At the foot of the above writing, on the same sheet, apparently written by the same person, these words occur: “Received of W. A. Hudson one note and mortgage, $800, given by H. Y. Boyd, which I have assigned to said Hudson as collateral for $180 due him on land papers. (Signed) A. R. Fowler.” This last paper is not dated. The alleged note of H. Y. Boyd is not his note; it is a forgery, pure and simple. The forgery attempts to reproduce Boyd’s genuine note, and does so very well, except that it is not a literal copy. The mortgage spoken of is the genuine mortgage given by Boyd to A. R. Fowler. Mr. W. A. Hudson testified: “He (Fowler) turned over the mortgage [the genuine mortgage] to me — that is, Fowler gave it to me, and I afterwards let Fowler have it for some purpose; I don’t remember what.” So Fowler again has the genuine mortgage, and he again disposed of it — for on the back of the mortgage is written: “I hereby transfer the within mortgage to D. H. Ifivermore as collateral security for one note for $250, dated April 6,1895. A. R. Fowler.” It will be noted that the assignment here is of the “within mortgage,” and does not purport to assign any debt which it was given to secure. It is simply an assignment of the mortgage. Another assignment of said mortgage is written upon the back thereof, and is as follows: “This mortgage having been transferred to me by above transfer, and later by a transfer in a note for $1,000, dated April 2, 1895, I hereby transfer and assign this mortgage to J. B. Redwine without recourse on me. August 13, 1895. D. H. River-more.” Glued to the mortgage is the following paper: “Office of J. B. Redwine, Atlanta, Ga., October 5, 1895. I do hereby transfer and assign to J. B. Redwine a certain mortgage, made by and given by H. Y. Boyd to me, and dated January 23, 1895, and recorded February 9, 1895, in book K K, page 157, of the Greenville County, S. C., records. This mortgage is for $800, and is transferred now, as above, for the purpose of securing a $1,000 note, made and given by me to said Redwine, for value received. This note is dated October 2, 1895, and due in six months, and this transfer is made to secure any future renewal of said note, in whole or any part thereof. (Signed) A. R. Fowler.” Note, again, that in none of these transfers is there any attempt to transfer the note the mortgage was given to secure, and yet that very mortgage, in express terms, is given to secure that one debt. These transfers seem to negative the idea of the transfer of the debt. A. R. Fowler was a sharp man; perhaps he had an idea that he could sell the note and mortgage, or assign them separately, and thus realize more from them, and was trying to work some such plan. At all events, we have a mortgage, securing in terms one debt, being assigned to secure another debt. Mr. Hudson can take nothing on his assignment, for he gave the mortgage back to Fowler. Redwine can take nothing under the assignment to h'im, because he only took an assignment of the mortgage, while Mr. McGee was the assignee of the note it was given to secure, and, as assignee, was, and is, the legal holder of said mortgage. His right or title is derived from two sources: 1st. A. R. Fowler assigned the mortgage to him at the time he assigned the genuine note to him. 2d. Even if Fowler had not, by express contract, so assigned said mortgage, still the assignment of the note, as we have seen, carried the genuine mortgage with it. The same authorities, already cited, hold that the assignment of the mortgage does not carry with it the note, bond or debt it was given to secure. On November 16th, 1895, the plaintiff, T. B. Whitmire, by this deed, under seal, duly conveyed the land in dispute to the defendant, H. Y. Boyd. The consideration is stated to be $2,000. Plaintiff duly executed and conveyed this deed to Boyd. This consideration, according to plaintiff’s view, was made up as follows: $1,000 to go to the old McDowell mortgage. He had been paid $235 b.y A. R. Fowler on November 16th, 1895. H. Y. Boyd furnished that cash, and Fowler gave him credit for it, and indorsed it as a payment upon the genuine note of Boyd to himself, for $800, dated January 22d, 1895, while in the hands of Mr. McGee. There is no doubt that Boyd paid this money to Fowler upon his note, and that Fowler paid it to plaintiff. On November 16th, 1895, W. P. Fowler, a brother of A. R. Fowler, and H. Y. Boyd gave their joint sealed note, secured by a chattel mortgage, to plaintiff for $100. This was duly paid. It was taken by plaintiff in payment in part by A. R. Fowler of the purchase money of the land described in the complaint. It will be remembered that under the agreement for the sale of the land between plaintiff and Fowler, that Fowler was to pay plaintiff $500 on or before December 1st, 1895, with interest from January 1st, 1895, at eight per cent, per annum. So that, on November 16th, 1895, plaintiff had received upon his said contract, either in cash or by note, and mortgage accepted as cash, $365, raised by Boyd. Fowler had also paid plaintiff $200 on the contract. Plaintiff and A. R. Fowler changed or modified their original contract; for, after receiving these payments, plaintiff on the same day gave a deed for the premises direct to H. Y. Boyd, and took from A. R. Fowler, as the consummation of the transaction, a sealed note and a mortgage of H. Y. Boyd to A. R. Fowler. This so-called note is an out and out forgery, and is as follows: “Green-ville, S. C., November 16th, 1895. On or before January 1st, 1898, I promise to pay to the order of A. R. Fowler, $800, with interest from date at the rate of eight per cent, per annum till paid in full, interest to be computed and payable annually. I agree to pay ten per cent, attorney’s fee in case this note is placed in the hands of an attorney for collection; and should default be made in the payment of interest, the whole $800 shall become due and payable. Witness my hand and seal, the 16th day of November, 1895, (Signed) H. Y. Boyd.” The mortgage given to secure this forged note is in the usual form, covers the land described in the complaint, and purports to have been executed by H. Y. Boyd on November 16th, 1895. It is a forgery also. This forged note and mortgage, as appears upon the back of the mortgage, was, on November 16th, 1895, the date of their purported execution, assigned and transferred by A. R. Fowler to the plaintiff, as and for payment of the balance due on the purchase of said land. Plaintiff accepted them as such payment. * * * I think, and so hold, that H. Y. Boyd acted as follows: He in good faith took his deed of the land from A. R. Fowler, and gave his $800 note and mortgage to A. R. Fowler. He then honestly believed that he owned the land, subject to the McDowell mortgage and the Fowler mortgage. Months afterwards he found out that his title was not perfect, and that plaintiff still held the legal title. He went to see plaintiff about it, and plaintiff told him substantially the status of the agreement between himself and Fowler. At that time Boyd contemplated complying with the agreement between plaintiff and A. R. Fowler — even asked plaintiff could he complete it. While there is no direct evidence as to what, if anything, passed between Boyd and A. R. Fowler, it is reasonable to assume, and incidental statements made by witnesses support the assumption, that Boyd talked with A. R. Fowler about the matter. It is only natural that he should have done so. It is evident that A. R. Fowler saw and talked with plaintiff in reference to the matter. Plaintiff and Fowler, without the knowledge, much less the consent, of Boyd, changed the agreement. Plaintiff’s own testimony and his acts and those of Fowler show this. I cannot say what passed between plaintiff and A. R. Fowler, but I know what they did as a consequence of what passed between them. The written agreement was abandoned or modified. A. R. Fowler had paid plaintiff $200 on the agreement. On November 16th, A. R. Fowler paid to plaintiff the $235 paid to him by Boyd, and he took the chattel mortgage for $100, which was soon afterwards paid. So that he had on that day been paid in cash, and what he received as cash, $535, a sum equivalent to the first payment nominated in the written agreement. Plaintiff then made an absolute deed in fee of the land to Mr. Boyd. Instead of demanding from Boyd a mortgage of the land to secure the second payment of $500, and interest, he took an assignment of a forged note and mortgage for $800 from Boyd to A. R. Fowler. Why this was done, I don’t know. Plaintiff, in one place in his testimony, seemed to have an idea that he owned the $800 note and mortgage; and in another place, that he held it as security for the balance due him on the land, to wit: $600. How a balance of $600 could, on November 16th, 1895, be figured out upon the terms of the old agreement, after deducting the payment made, I can’t see. While I must not be understood as intimating even in the slightest degree that plaintiff did wrong in changing the old agreement with Fowler; yet, inasmuch as the action actually taken was more beneficial to plaintiff than the old agreement was, it tends to show that plaintiff and Fowler did make a new agreement. But this $800 note and' mortgage were forgeries, hence all of this trouble. A. R. Fowler knew that they were forgeries, and it is pretty certain that he forged them. Plaintiff took these forged papers, believing them to be genuine, and upon this belief made the deed to Boyd. Boyd knew nothing of these papers. They were dated November 16, 1895, the very day that plaintiff made the deed to Boyd. Plaintiff saw that they purported to be executed on that day, for he speaks of their execution upon that day. According to the trend of the testimony, I think that A. R. Fowler fixed them up that day, and did it for the purpose of deceiving plaintiff, by falsely pretending to comply with the terms of the plaintiff. Plaintiff thought that the $800 mortgage of Boyd to Fowler was worthless, because the legal title was not in Boyd when he made that mortgage. Plaintiff thought that said mortgage should be marked satisfied upon the record, disposed of. Plaintiff then thought that if he made a deed to Boyd which could put the legal title in Boyd, that Boyd could make an $800 note, secured by a valid mortgage of the land, to A. R. Fowler, and that Fowler could assign it to him. Now, Fowler pretended to do all these things, and his pretension deceived the plaintiff. But Boyd knew nothing of these changes, forged papers, &c., and they do not and cannot bind him. As to him they are worthless and of no force or effect. * * * I hold that Boyd did not induce plaintiff to make the deed to him; that Fowler induced him to make the deed; that Boyd honestly and faithfully complied with the new contract between plaintiff and Fowler, as told to him by plaintiff, by raising cash, or its equivalent, sufficient to satisfy the demand of plaintiff as made known to him by plaintiff. That plaintiff’s new contract with Fowler and the note and mortgage was known only to them, and not to Boyd; that Boyd got his title honestly by complying with his contract with A. R. Fowler, and by having Fowler to do all that plaintiff told him he required of Fowler. It is not disputed, that Boyd complied with his contract with Fowler. He accepted his deed from him, and gave him the $800 note and mortgage of January, 1895, when plaintiff said that $335 would enable him to get plaintiff’s deed; he raised that money for Fowler, who paid it to plaintiff, and plaintiff made his deed to Boyd. I think that Boyd has acted legally and honestly throughout, and he should not be mulcted to pay Fowler’s debts, with which he had nothing to do. McGee holds Boyd’s genuine note and mortgage, lent his cash upon the belief that they were genuine. They are genuine. Plaintiff sold his land to Boyd, made a deed to him, and was moved to do so by his bargain with A. R. Fowler. Boyd took the deed, and complied with his every obligation, and with the contract as between Fowler and plaintiff, according to plaintiff’s statements of that contract made to him. Boyd is an honest and innocent purchaser. I hold that H. Y. Boyd’s title to the land^is valid; that the forged mortgage of November 16th, 1895, is, as to him, of no force or effect; and all that he owes to .any party to this action is the balance due on his $800 note and mortgage of January, 1895, in favor of A. R. Fowler, now held as collateral by McGee, $806.02. H. Y. Boyd should pay of this amount, to the defendant, B. M. McGee, $526.49, as heretofore stated. This leaves a balance of $279.53 due to some one by H. Y. Boyd. To whom should it be paid? I think that it should be paid to the plaintiff. I lay no stress upon the fact that this is a part of the purchase money of the land. There is no such lien known to the law of this State, as the vendor’s lien for the purchase money. If he wants a lien, he must, by appropriate means, create one. This balance of $279.53 belongs to A. R. Fowler. The forged mortgage of Boyd to Fowler, of November, 1895, while of no force as e^gainst Boyd, is, upon the doctrine of estoppel, good in plaintiff’s hands as against Fowler. That forged mortgage purported to be a security upon the land to pay a debt which Fowler owed plaintiff. This balance of money, belonging to Fowler, may be regarded as the land he described in his forged mortgage. Considering, -then, the money as the land, and that it belongs to Fowler, plaintiff has, as against Fowler, the right to regard ‘the mortgage, though forged, as valid, and as covering the said balance. Can any other party to this action deny this claim of plaintiff? None of them had a lien upon this money, nor did they have a lien upon the land which it represents. Plaintiff has, in the manner indicated, a lien, equitable it may be, which entitles him to it. I need not consider the question as to how much A. R. Fowler owes to plaintiff; it is far more than the balance stated. The other parties to the action will get nothing in this cause. From my view of the case, the amendments allowed by the master are immaterial, and need not be discussed. I think that Mr. McGee should not be required to pay any costs, as he has gained his case. I do not think that Mr. Boyd should be made to pay the costs of all the parties, because this litigation was not due to any default of his; he has acknowledged his liability to pay what he owed all the while, and the real contest was as to which claimant should it go. Plaintiff instituted this action, and much of it is due to his effort to enforce a forged note and mortgage which he believed to be true. I think that H. Y. Boyd should pay the costs and disbursements of Mr. McGee, his own costs, and one-half of the fees of the master; that plaintiff should pay one-half of the fees of the master and his own fees; and that each of the defendants, except Mr. McGee, should pay his own costs and disbursements. The plaintiff, Thos. B. Whitmire, appealed from the said decree on the following grounds: I. His Honor erred in holding, as a matter of fact, that the plaintiff and the said A. R. Fowlgr changed the terms of the written agreement entered into between them for the sale of the said land without the knowledge and consent of the said Boyd, it being respectfully submitted that the said finding is not sustained by the testimony in the case; but the testimony, on the other hand, shows that the plaintiff insisted upon the said Fowler and the said Boyd carrying out the said agreement, and they agreed thereto. II. He erred in. finding, as a matter of fact, that on the 16th day of November, 1895, B05M paid $225 on the McGee note to Fowler, and that Fowler paid it to the plaintiff; the testimony showing that the plaintiff agreed with the said Boyd and Fowler that they should pay to him the said sum of money on'account of the original agreement entered into between himself and the said Fowler, and that the said money was paid by Boyd to the said plaintiff; in this connection he erred in not holding that this $335, together with w.hat had already been paid plaintiff, would amount to what the original agreement called for. III. He erred in holding that Boyd paid the plaintiff $365 on account of the purchase of the said land, the testimony showing that Boyd paid only $235, and the other $100 was paid by W. P. Fowler. IV. He erred in holding that plaintiff accepted the note and mortgage sued on as “payment” of the balance due on the purchase of the land, the testimony showing that the plaintiff used this language in the sense of “collateral security,” and, as a matter of fact, the testimony shows that the said note and mortgage were accepted by him as such. V. He erred in not holding that at the time he accepted said note and mortgage, that he explained fully the transaction to the defendant, Boyd, and that the said Boyd admitted that the papers were genuine, and thereby induced the said plaintiff to part with his title; and in this connection he erred in not holding that the said Boyd is now es-topped from disputing the validity of the same. VI. He erred in holding that the testimony of the said Boyd, as to what passed between him and the plaintiff, was sustained by the preponderance of the testimony; and in this connection he erred in overruling the conclusions of the master, who was familiar with the witnesses and saw their demeanor upon the stand with reference thereto. VII. He erred in concluding that the defendant, McGee, loaned the said Fowler money on the faith of the security deposited with him by said Fowler; the said McGee testifying himself that he refused to advance the money on the faith of the said security, and required the said Fowler to obtain personal indorsement of the said note, which was done; and in this connection he erred in not adjudging that the said McGee having a' note secured by personal indorse-ments, which security this plaintiff did not have, that he should be required to exhaust them before participating in the proceeds of this action. VIII. He erred in decreeing that the defendant, McGee, should be paid $526.49 before this plaintiff; it being respectfully submitted that before Boyd’s title could feed McGee’s note or mortgage, Boyd would have to pay the plaintiff the balance due him on account of the purchase of the said land, under the agreement between Fowler and this plaintiff. IX. He erred in adjudging that the plaintiff should be liable for any of the costs of this action, he having recovered judgment against the defendant, Boyd, and the Court having found that he was an innocent party, misled into taking the mortgage sued on through the fraud of another. X. He erred in not holding that the defendant, Boyd, by his conduct with reference to this matter induced plaintiff to accept the note and mortgage sued on as collateral security for the balance due him on account of the purchase money of the said land, and acknowledged that the papers were genuine, after the transaction had been explained to him, as testified to by the plaintiff and as found by the master, and, therefore, would be estopped from disputing the validity of the plaintiff’s mortgage, which, as .to him and all claiming through him, would be genuine, and would cut off any prior incumbrances. XI. Having concluded that the mortgage was a forgery, and that the plaintiff when he took it was ignorant thereof, and that he accepted it in payment of the balance of the purchase money, he erred in not adjudging because of these facts that plaintiff’s title was obtained from him through the fraud of Fowler at least, and he would be entitled to be paid the balance of the purchase money before his title would be good in Boyd’s hands, or feed the McGee note and mortgage. XII. He erred in not holding that Fowler obtained the McGee note and mortgage through fraud, by representing that he was the owner of the property, and made the said Boyd a title thereto in consideration thereof, when in fact he had no title; that, therefore, the said note and mortgage would be nullities in the hands of Fowler, and the defendant, McGee, has no higher rights than he would have. XIII. He erred in not sustaining the master as to his finding of fact, to wit: “That on the 16th day of November, 1895, the said Boyd paid to the plaintiff $235, and gave him a chattel mortgage to secure a balance of $100, which mortgage was afterwards paid, making a total of $335 in cash; and it was agreed by and between the said Boyd, the said Fowler and this plaintiff, that the note and mortgage sued on by plaintiff should be assigned to him to secure the balance of $600, which it was understood and agreed was due the plaintiff on account of the sale of the land.” The said finding being sustained by the weight of the testimony. XIV. He also erred in not sustaining the finding of fact on the part of the master as follows: “I further find as a matter of fact that before accepting the said note and mortgage, the plaintiff inquired of the defendant, Boyd, if the said note and mortgage were genuine papers, and was assured by the said Boyd that they were, and the plaintiff was induced by the representations of the said Fowler and the said Boyd to part with his title and receive the said papers as collateral security for' the balance due him as aforesaid. That thereupon, and in consideration of the said $335 and the assignment to him by the said Fowler, with the knowledge and consent of the defendant, Boyd, of the note and mortgage sued on to secure the sum of $600, the balance due on account of the purchase of the said land, the plaintiff executed and delivered to the said H. Y. Boyd a warranty title for the said premises.” The said finding being sustained by the weight of testimony. XV. He erred in not sustaining the conclusion of law on the part of the master as follows: (a) That the note held by the defendant, McGee, of date January 22d, 1895, and the mortgage held by the defendant, Redwine, given to secure the same, are non-negotiable, and the assignees thereof took the same subject to any equities existing between the said Boyd and the said Bowler, (b) That the consideration of the said papers was the purchase of the land described in the complaint; that at that time the said Fowler had no title thereto; that he falsely and fraudulently represented to the said Boyd that he did have such title; and if the said Fowler were before the Court seeking to establish the said indebtedness as against Boyd, or as against this plaintiff, he could not recover, (c) That the defendant, McGee, as as-signee of Fowler, has no higher rights than he had, and, therefore, he cannot recover anything in this action. All of the above propositions being sound law, applicable to the undisputed facts in the case, and, therefore, conclusive of the rights of the defendant, McGee, herein. XVI. Upon the theory that plaintiff’s note and mortgage are forgeries, he erred in not sustaining the conclusion of the master, that in that event plaintiff’s title was obtained from him through fraud, and before the other defendants could have any equity in the land, they ought to comply with the agreement between the plaintiff and said Fowler, the performance of which the defendant, Boyd, afterwards undertook; and that plaintiff’s equities in the premises for the balance of his purchase money under the said agreement would be superior to those of the other defendants. XVII. He erred in not sustaining the conclusion of the master that Fowler held the land subject to the plaintiff’s rights under the aforesaid agreement; the defendant, Boyd, acquired only Fowler’s rights, and that their assignees occupied no higher position than they occupied. Boyd’s right, therefore, would be the right to the title of the land upon the pa5>ment to the plaintiff of the balance of the purchase money due him, and the right of the defendant, McGee, rises no higher. XVIII. He erred in not sustaining plaintiff’s exceptions to the master’s report, to wit: 1. That he is entitled to $600, and interest thereon from November 25, 1895, and ten per cent, thereon as attorney’s fees, being the amount due him as agreed upon by the parties at the time the mortgage sued on was assigned to him, as shown by the evidence. 2. Upon the theory that the mortgage sued on was a nullity, then the master erred in not holding that tbe amount due plaintiff was the amount called for by the original agreement between himself and Bowler, introduced in evidence, with interest thereon, less $325, paid on November 25, 1895— which amount, under this view of the case, the master should have found due the plaintiff. 3. The master erred in not holding that plaintiff was entitled to ten per cent, attorney’s fees on the amount found to be due him. The defendant, H. Y. Boyd, also appeals upon the following grounds: I. Because his Honor erred in holding the defendant liable for the payment of the note and mortgage which were assigned by A. R. Fowler to B. M. McGee, when he should have held that the defendant is liable only for the payment of $465, with interest thereon from November 16, 1895, to-date at seven per cent. The testimony showing: CL) that there was no consideration for said note and mortgage; (2) that said note and mortgage had been obtained from defendant through false and fraudulent representations by the assignor of B. M. McGee; (3) that said note and mortgage were non-negotiable, and in the hands of B. M. McGee were subject to the equities existing between the defendant and A. R. Fowler; (4) that defendant received his title directly from plaintiff on the 16th day of November, 1895, and paid through A. R. Fowler to plaintiff on account of the purchase -money $335. II. Because, if the defendant is held liable at all on the note and mortgage assigned to B. M. McGee, his Honor erred in holding that defendant is entitled to credit for $235 on account thereof, when he should have held that defendant is entitled to a credit of $335; the testimony showing that such last named sum was paid by the defendant to the plaintiff. III. Because his Honor erred in holding that the defendant is liable for the payment of ten per cent, as attorney’s fees to B. M. McGee, when he should have held, if the defendant was liable on said note and mortgage at all, that such additional payment is not authorized by the terms of the said note; the testimony showing no facts which would entitle B. M. McGee to attorney’s fee. IV. Because his Honor erred in holding that the defendant should pay one-half the costs of the plaintiff, when he should have held that such costs should have been borne by said plaintiff; the testimony showing that the action was instituted on a forged instrument upon which defendant is in no wise liable. V. Because his Honor erred in holding that the defendant should pay the costs of B. M. McGee, when he should have held that said B. M. McGee should pay his own costs; the testimony showing that the note and mortgage sought to be enforced by said B. M. McGee were without consideration and not binding on the defendant. The respondent, B. M. McGee, gave notice that he would seek to sustain the decree of Judge Aldrich upon the following additional grounds: I. That the Judge’s holding that the plaintiff was not entitled to a purchase money lien for the balance due him by Fowler should be sustained on the further grounds: (1) The allegations of the amended complaint are insufficient to set up such a lien, and (2) the master erred in allowing the plaintiff, after the testimony had been closed, to amend his complaint by setting up a lien independent of the mortgage; it being submitted that this was the introduction of a new cause of action and a substantial change in the complaint. II. The Judge’s holding that H. Y. Boyd was indebted to B. M. McGee on the note and mortgage set forth in McGee’s answer should be supported on the additional ground that Boyd’s original answer did not allege any failure of consideration as to this note and mortgage; and it is submitted that the master erred in allowing Boyd to amend his answer after the close of the testimony so as to set up such a defense, the change being substantial. III. That Whitmire, at the time of the assignment of the papers to him set forth in the complaint, had notice of the prior note and mortgage, and that the latter was duly recorded. He was, therefore, charged in law with notice that said papers might have been transferred by Fowler to another, and that Fowler might be estopped from claiming that the said note and mortgage were not a first lien on the land; and Whitmire, in receiving the assignment of the papers from Fowler, took the same subject to all equities and disabilities attaching thereto in Fowler’s hands. IV. That Boyd, before completing the transaction with Fowler in January, 1896, had inquired of Whitmire as to whether he had sold the land to Fowler, and being assured that he had done so, Boyd closed the transaction with Fowler; and that Whitmire was thereby estopped as against Boyd and his assignees from saying that he had not conveyed the land to Fowler. cites: Boyd is estopped from disputing validity of note and morG gage sued on: 24 S. C., 393; 12 Wall, 365. Plaintiff's equity is superior to that of all the defendants: 20 S. C., 230; Bail. Eq., 223, 463; Harp. Eq., 184; 3 S. E. R., 593; 9 S. E. R., 486. Not error to permit plaintiff to amend his complaint: Code, 294; 41 S. C., 145; 39 S. C., 334. cite: Amendments to complaint and answer of Boyd were improper: 51 S. C., 154; 49 S. C., 513; 31 S. C., 199; 24 S. C., 221; 21 S. C., 226. Whitmire took the papers subject to all defenses." 22 S. C., 30; 1 Spear, 120. No ground for rescission: 21 S. C., 226; 15 S. C., 174; 26 S. C., 424; 28 S. C., 449.