
    9974
    KRENTZLIN v. BARRON ET AL.
    
    (96 S. E. 115.)
    1. Trial—Trial by Court—Foreclosure—Issues—Submission- to Jury. —In suit to foreclose a mortgage, where two defendants alleged and testified that they never intended to assume the payment of the mortgage debts put upon the property by former purchasers, and that they were led to do so by the connivance of others, which the other parties denied, and, in answering, stated that such defendants by their subsequent conduct waived any such defense, and are estopped to set it up, thus making prima facie issues of fact largely determinative of the cause, the Supreme Court will direct submission to a jury for trial of the issues whether the two defendants intended to assume payment of the mortgage debts, or were led to do so by the connivance of others, and, if they did not, did they by their subsequent conduct so waive their right to set up that defense as to estop them?
    
      2. Mortgages—Assumption of Mortgage Debts—Estoppel to Make Defense—Burden of Proof.—In suit to foreclose a mortgage,, on the issue whether two defendants intended to assume payment of the mortgage debts referred to, or were led to do so by the connivance of others, such defendants have the burden of proof, but, on the issue whether by their subsequent conduct they waived their right to set up the defense, so as to estop them from making it, the other parties have the burden.
    Before Prince, J., Richland, Fall term, 1917.
    Remanded to Circuit Court for the submission of issues to a jury.
    Suit to foreclose a mortgage by Elizabeth C. Kr'entzlin against Clarendon W. Barron, Sarah Boylston and others. From decree confirming in part the master’s report, but sustaining exceptions to so much as held that defendant, Boylston was entitled to two mortgages claimed by him, etc., defendants. Sarah Boylston and others, appeal.
    After argument on appeal, the Supreme Court, suo moiu, remanded the cause to the Circuit Court to have certain issues of fact submitted to a jury.
    
      Mr. Frank G. Tompkins, for appellants.
    ■ Messrs. Thomas & Lumpkin, H. N. Edmunds, Melton & Belser and Edward L. Craig, for respondent.
    May 31, 1918.
   The opinion of the Court was delivered by

Mr. Justice Watts.

The defendants, Barron and Boylston, have made primary issues of fact, which are largely determinative of the cause. These defendants allege and testify that they never intended to assume the payment of these mortgage debts which had been put upon the property by former purchasers of it; and they say they were led to do so by the connivance of Keenan and Summersett. The other parties deny that charge, and in the answer to it say that Barron and Boylston, by their conduct subsequent to the alleged assumption, waived any such defense and are estopped now to set up the same. We direct that the two following issues of fact be submitted to a jury for trial: First, did Barron and Boylston intend to assume the payment of the mortgage debts referred to, or were they led to do so by the connivance of others ? Second, if they did not, yet did they by their conduct subsequent to that transaction so waive their right to set up that defense as to estop them, now to make it? On the first issue let Barron and Boylston be the actors, and on the second issue let the other parties be the actors.

Let the verdict be reported back to this Court.

Mr. Chief Justice Gary and Messrs. Justices Hydrick and Gage concur.

Mr. Justice Fraser disqualified and did not sit.  