Evans v. Anderson

Decided August 1, 1934

Supreme Court of South Carolina · decided 1934-08-01

Decided 1934-08-01

¶1 The opinion of the Court was delivered by

Mr. W. C. Cothran, Acting Associate Justice.

¶2 The decree of the Circuit Judge is entirely satisfactory. It is, therefore, affirmed and made the judgment of this Court.

Mr. Chiee Justice Beease and Messrs. Justices StabEEr, Carter and Bonham concur.

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Case posture

Posture: Before SHIPP, J., Florence, October, 1932. Affirmed.Suit by Ruth Lee Evans against G.R. Anderson and another. From a judgment for defendants, plaintiff appeals. The order of reference, the report of the Master, and the decree of Judge Shipp follows: ORDER OF REFERENCE This matter comes on for hearing upon notice of motion for an order of reference on the part of the defendants and was opposed by plaintiff's attorney. A consideration of the pleadings shows that the relief demanded consists in freeing the plaintiff's alleged title from liens, claims, rights and interests of the defendants under certain mortgages made by H.J. Lee, which plaintiff claims were accepted with knowledge of the execution and delivery by H.J. Lee of the alleged deed to plaintiff. The answer raises equitable issues as to the right of the defendants to be subrogated to the rights of the State of South Carolina and County of Florence for certain taxes paid upon the tract of land described in the complaint, and that plaintiff, by alleged conduct therein set forth, should be estopped to assert any title to the premises described. It is, therefore, upon motion of Willcox, Hardee Wallace, attorneys for defendants, Ordered that all equitable issues in this action be, and they are hereby, referred to C.W. Muldrow, Esquire, Master for Florence County, to take and report the testimony with all convenient speed, with his conclusions of fact and of law, with leave to report any special matter. This order is without prejudice to the right of plaintiff to have submitted to the jury any legal issues if any issue of title remains after disposal of the equitable issues. S.W.G. SHIPP; Judge Twelfth Circuit . At Chambers, Florence, S.C. November 21st, 1932. REPORT OF MASTER This matter was referred to me by his Honor Judge S.W.G. Shipp, Judge of the Twelfth Circuit, by order bearing date November 21st, 1932, to take and report the testimony with all convenient speed, with my conclusions of fact and of law, with leave to report on any special matter. The order further reads, This order is without prejudice to the right of the plaintiff to have submitted to the jury any legal issues if any issue of title remains after disposal of the equitable issues. Pursuant to the order I have held a reference and taken the testimony, which is herewith submitted. I find that H.J. Lee, being at that time the owner, on February 20th, 1929, made, executed and delivered a mortgage to G.R. Anderson and L.D. Anderson of a tract of land described as follows: All that certain piece, parcel or tract of land, lying, being and situate in the County of Florence, State of South Carolina, containing one hundred and five (105) acres, more or less, and bounded as follows, to wit: On the north by other lands by H.J. Lee and lands of Murry Lee; on the south by lands of J.D. McClam; on the east by lands of H.H. Lee and Johnny Rodgers; on the west by lands of E.J. Lee. I further find that on March 14th, 1931, he made another mortgage to G.R. Anderson and L.D. Anderson of the same tract of land, the description being as follows: All that certain piece, parcel or tract of land lying, being and situate in the County of Florence and State of South Carolina, containing one hundred and five (105) acres, more or less, and bounded as follows; to wit: On the north by other lands of H.J. Lee and lands of Murry Lee; on the east by lands of John Rodgers and lands of H.H. Lee; on the south by lands of H.H. Lee and lands of J.D. McClam, on the west by lands of J.C. Carroway and lands formerly of E.J. Lee, but now of Lloyd Lee, this being the same tract of land on which I now reside. H.J. Lee failed to pay the debt for which the mortgages were given as security, and they were foreclosed in an action in the Court of Common Pleas entitled G.R. Anderson and L.D. Anderson v. H.J. Lee et al. , which is Judgment Roll No. 9991 in the office of the Clerk of Court for Florence County. G.R. Anderson and L.D. Anderson became the purchasers at the foreclosure sale and on the 7th day of March, 1932, the said premises were conveyed to them by my deed as Master for Florence County, which deed is recorded in Book 15, page 61, office of Clerk of Court, the description therein being as follows: All that certain piece, parcel or tract of land, lying, being and situate in County of Florence, State of South Carolina, containing one hundred and five (105) acres, more or less, and bounded as follows: On the north by other lands of H.J. Lee and lands of Murry Lee; on the south by lands of J.D. McClam; on the east by lands of H.H. Lee and Johnny Rodgers and on the west by lands of E.J. Lee. This action was commenced on October 28th, 1932, and plaintiff, Ruth Lee Evans, alleges, and I find it to be a fact that on November 29th, 1928, H.J. Lee did make, execute and deliver unto her his certain deed and did thereby undertake to convey unto plaintiff, her heirs and assigns, the following described real estate, to wit: All that certain piece, parcel or tract of land, in the State and county aforesaid, containing twenty-four (24) acres, and bounded as follows, viz.: On the north by other lands of grantor, road leading from Murry Lee's to E.J. Lee's the line and lands of John Rodgers; on the south-east by lands of H.H. Lee; on the south by J.D. McClam's land and on the west by lands this day conveyed by me to Herbert Lee, Jr. This being intended by me to be the full share of the said Ruth Lee Evans to my real estate. Reference to a plat of the same by T.J. Smith, Reg. Sur. of even date herewith will more fully appear. I find that the tract of land described in the mortgages referred to from H.J. Lee to defendants, and my deed as Master to them herein embraces the tract of land last described. The deed to plaintiff was not recorded until after this action was commenced. The plaintiff claims to be the owner and to have the legal title to the twenty-four acre tract described. She alleges that defendants claim the twenty-four acre tract under the mortgages aforementioned but that they have no interest therein because prior to the execution and delivery of the said mortgages by the said H.J. Lee that the said H.J. Lee advised and gave due and proper notice to the defendants that he had made, executed and delivered the said deed described in Paragraph two of said complaint (plaintiff's deed), and when defendants accepted the said mortgages aforementioned they had due and timely notice of the execution and delivery of the said deed by H.J. Lee to plaintiff and that they took and accepted the said mortgages with full notice and knowledge that the said H.J. Lee could not execute a good mortgage to the said premises as described in Paragraph two. The plaintiff by these allegations, acknowledges the facts which necessarily follow from a consideration of the descriptions contained in each of the mortgages and the Master's deed. This is the occasion for bringing the action. The plaintiff asks that the cloud on her alleged title, represented by these mortgages, be removed, and there would be no occasion for such a suit if the descriptions did not embrace the land. There is no issue thereabout made by the pleadings and there is no other inference from the written documents and testimony. I find from the plaintiff's deed, which was introduced in evidence, that it purports to convey to her the fee-simple title to the twenty-four acre tract after a life estate in H.J. Lee, who is still living. Plaintiff in her complaint alleges, and proof has been offered to the effect that at the time of the execution and delivery of the mortgage to defendants, dated February 20th, 1929, the defendants were advised that H.J. Lee had made, executed and delivered the deed to twenty-four acres to her. Defendants deny that such is the case, and have offered proof in support of their position. I have considered carefully the pleadings and the order of reference, and am at a loss to know whether the Court intended for me as Master to find the fact as to whether or not the defendants did have such notice, and I, therefore, make no finding one way or another, but submit this report so that the Court may decide the fact itself, refer it back to me for determination or submit the issue to the jury, as it may be advised. If the Court did not intend for me to make a finding thereabout, there remains no other question to decide except as to the lien for taxes paid which defendants claim, and are entitled to at all events. I find that they, as mortgagees, paid taxes on the lands, including the twenty-four acre tract, for the years 1928, 1929, 1930 and 1931, and that of the taxes so paid the following amounts represent taxes paid on the twenty-four acre tract, and the improvements thereon situate, for which defendants at all events have liens, with interest at seven per cent. from the dates of payment, as set forth: Twenty-five and 23/100 ($25.23) Dollars paid August 2d 1929, Thirty-three and 14/100 ($33.14) Dollars paid March 7th, 1932, Twenty-three and 22/100 ($23.22) Dollars paid March 7th, 1932, Eighteen and 67/100 ($18.67) Dollars paid March 7, 1932, Eighteen and 67/100 ($18.67) Dollars with interest thereon as of the date of this report, the sum of One Hundred Eleven and 13/100 ($111.13) Dollars. C.W. MULDROW, Master in Equity for Florence County . DECREE OF JUDGE SHIPP This matter came on for hearing upon exceptions to the Master's report and upon notice of application for final hearing of all issues involved. It was fully heard, and due consideration has been given to the positions of the plaintiff and defendants. The complaint set forth a cause of action to remove a cloud upon the alleged title of plaintiff to a tract of land in State and county aforesaid, containing 24 acres, described therein. It is alleged that the defendants claimed some rights to the premises, under and by virtue of the mortgages executed by H.J. Lee. Plaintiff alleges that prior to the execution and delivery of the said mortgages, H.J. Lee advised and gave due and proper notice to the defendants that he had made, executed, and delivered a deed to said premises to the plaintiff, and the defendants took and accepted said mortgages with full notice and knowledge that said H.J. Lee could not execute a good mortgage to the premises described in the complaint. The answer admits that the defendants claim the premises by virtue of a foreclosure of the mortgages mentioned and described in the complaint and deny that they had notice of the deed by H.J. Lee to the plaintiff. The cause was referred to C.W. Muldrow, Esq., Master, to take and report the testimony with all convenient speed, with his conclusions of fact and law, with leave to report on any special matter, without prejudice to the right of plaintiff to have submitted to the jury any legal issues, if any issue of title remains after the disposal of the equitable issues. The only substantial issue between plaintiff and defendants is the question of the alleged notice to defendants of the execution and delivery of the deed by H.J. Lee to plaintiff. The plaintiff sought to raise an issue as to whether the mortgage to defendants embrace the tract of land described in the complaint. It necessarily follows from the allegations of the plaintiff's complaint that the 24-acre tract is embraced in the description contained in the mortgage to the defendants. The plaintiff asks that the cloud on her alleged title, represented by these mortgages, be removed, and there was no occasion for such a suit, if the descriptions did not embrace the land. I agree with the Master. There is no issue thereabout made by the pleadings, and plaintiff's exceptions to this conclusion of the Master are overruled. There remains in the case no other issue for determination, except the issue of notice heretofore adverted to. This issue is raised by the allegations of the complaint and the denial in the answer. The foundation for equitable relief is based upon the allegation that defendants did have notice, and for that reason their mortgages should be held to constitute no lien upon the tract of land described in the complaint. This is not a suit for the recovery of money only, or of specific real or personal property, and a jury trial is not demandable as a matter of right. When the plaintiff came into the Court of Equity and asked that the cloud upon her title be removed, she voluntarily submitted to the Court the issue upon the determination of which her right to the relief prayed for in the complaint depended. It is elementary that questions of fact arise in equity cases, and are tried there, with the right in the chancellor to submit any issues of fact to a jury in connection with which he might desire their advisory judgment. The testimony as to alleged notice has been carefully reviewed by this Court. Every fact and circumstance, and the testimony of the only disinterested witness, point to the conclusion that defendants did not have notice. Plaintiff and H.J. Lee testified that they, together with Mrs. H.J. Lee, were present when the first mortgage covering the tract described in the complaint was executed, and at that time the defendants were advised of the execution and delivery of the deed to plaintiff. Defendants and a witness to the execution to the mortgage denied this, but the stronger and more convincing circumstances is that Mrs. H.J. Lee did not execute dower on the mortgage until thirteen days after it was executed by her husband, corroborating the defendants and the attesting witness that neither plaintiff nor Mrs. Lee were present when the mortgage was executed. Viewing all the testimony on this subject, there can be no doubt in the mind of a reasonable man that the defendants had no notice of the deed. It was not recorded until after the institution of this action. It is therefore adjudged and decreed that defendants took the mortgages described in the complaint without notice of the execution and delivery of deed to plaintiff of the tract of land described in the complaint and their rights are unaffected thereby. It is further ordered, adjudged, and decreed that the Master's report be, and it is, confirmed, and that the complaint be dismissed.

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Supreme Court of South Carolina

Parallel citations

175 S.E 527