OpenJurist › Volume 184 › S.C. › Page 37 184 S.C. 37
Gardner v. Kirven Supreme Court of South Carolina · decided 1937-05-18
Good law ✅ — No negative treatment on record how we know
Decided 1937-05-18
How this case has been cited Cited by 19 later decisions — most recently August 2015
1 federal appellate · 1 district · 12 state decisions
5 0 1937 1940 1950 1960 1970 1980 1990 2000 2010 decided Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
View the full empirical analysis of this case →
¶1
The opinion of the Court was delivered by
Mr. ChiEE Justice Stabler.
¶2
I regret that I am unable to agree with Mr. Justice Baker that the judgment in this case should be reversed in part. A careful study of the record convinces me that Judge Oxner correctly decided all questions involved. His order, therefore, which will be reported, is affirmed
in toto.
Messrs. Justices Carter and Bonham concur.
Messrs. Justices BakEr and Fisi-iburne dissent.
Download
Copy
Embed on your site
iframe Markdown Preview card Button Hover to preview · click to copy the code
Case posture Posture Before OXNER, J., Darlington, February, 1936. Affirmed.Suits by C.E. Gardner, as Receiver of John K. Kirven, against John K. Kirven and Emmie B. Kirven, and against John K. Kirven and Anna B. Kirven. From an adverse decree, defendants appeal.
The order of Judge Oxner, requested to be reported, follows:
On the 10th of October, 1930, Idella Blackmon, through her guardian ad litem , instituted an action in the Court of Common Pleas for Darlington County against John K. Kirven for damages growing out of an unlawful assault committed September 29, 1930. Issue was joined and a verdict for $5,000.00 returned on November 3, 1932. The judgment which was entered on this verdict was affirmed by the Supreme Court on July 7, 1933. 170 S.C. 190 , 170 S.E., 157 .
Execution was issued, on which the sheriff made a nulla bona return, whereupon an order for supplemental examination was made on July 29, 1933, by this Court. Testimony was taken in supplemental proceedings during the summer and fall of 1933.
At the same time a motion was made before Hon. Hayne F. Rice on the 13th of September, 1933, for execution
against the person and for an order holding John K. Kirven to arrest and bail in payment of the judgment. Such an order was granted by Judge Rice on the 12th of December, 1933, and on appeal this order was affirmed September 8, 1934. 173 S.C. 322 , 175 S.E., 814 . John K. Kirven, however, prior to the rendition of Judge Rice's decision, left the state, and since that time has remained in Georgia and Florida. Collection of the judgment has therefore not been effected by means of this proceeding.
In the first above-entitled action C.E. Gardner was on September 1, 1933, appointed Receiver for John K. Kirven. Thereafter, on November 17, 1933, he instituted the second and third above-entitled actions for the purpose of setting aside certain transfers and conveyances to Emmie B. Kirven and Anna B. Kirven, respectively, as fraudulent and preferential. These complaints were amended, demurrers were filed thereto, and the demurrers were overruled on March 8, 1934, which orders were affirmed on appeal August 3, 1934. 173 S.C. 302 , 175 S.E., 637 .
During these proceedings a motion was made by C.E. Gardner, as Receiver, in the District Court of the United States for the Eastern District of South Carolina, in the case of Dixon v. Gage (Krupnick v. Peoples State Bank) , 18 F. Supp. 895 , asking that the Receivers of the Peoples State Bank, who had possession of the Fred Law bond and mortgage hereinafter referred to, deliver the same over to him. Issue was joined upon this motion, and on May 28, 1934, the Honorable J. Lyles Glenn, Judge presiding, directed that the Fred Law bond and mortgage be turned over to C.E. Gardner, Receiver, without prejudice to any rights therein held by Miss Emmie B. Kirven. Under the order of the Court of Common Pleas for Darlington County issues regarding the title to this bond and mortgage were held along with the two actions to set aside the transfers referred to hereinabove.
These matters were marked heard by me while presiding in the Fourth Circuit and arguments were made before me
at that time. Counsel desired time after the oral arguments for filing written memoranda, and the delay in rendering this opinion is due to the fact that when the written arguments were received this Court was busily engaged in holding Courts in other circuits.
The issues presented by the pleadings in these cases are as follows:
(1) Are the transfers from John K. Kirven to his wife, Anna B. Kirven, and to his daughter, Emmie B. Kirven, void as a violation of the Statute of Elizabeth, Section 8696?
(2) Are the transfers by John K. Kirven to his wife, Anna B. Kirven, and to his daughter, Emmie B. Kirven, void under the Assignment Act (Code 1932, § 9106)?
(3) What are the rights of the respective parties in the Fred Law bond and mortgage now in the hands of C.E. Gardner, Receiver for John K. Kirven?
In disposing of these issues it is well to bear in mind certain well-established and fundamental principles of law applicable to the facts in these cases.
Under the provisions of the Statute of Elizabeth (Section 8696), every conveyance made for any intent or purpose to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, * * * shall be deemed and taken * * * to be clearly and utterly void, frustrate, and of none effect.
Our Courts, in interpreting this statute, have held that conveyances shall be set aside under two conditions: First, where the transfer is made by the grantor with the actual intent of defrauding his creditors where that intent is imputable to the grantee, even though there is a valuable consideration; and, second, where a transfer is made without actual intent to defraud the grantor's creditors, but without consideration. Farmers' Bank v. Bradham , 129 S.C. 270 , 123 S.E., 835 ; McInnis v. McRae , 134 S.C. 162 , 132 S.E., 473 .
Where transfers to members of the family are attacked either upon the ground of actual fraud or on account of their voluntary character, the law imposes the burden on the transferee to establish both a valuable consideration and the bona fides of the transaction by clear and convincing testimony. Epworth Orphanage v. Strange , 148 S.C. 500 , 503 , 504 , 146 S.E., 414 (1), and cases cited; Virginia-Carolina Chemical Co. v. Hunter , 94 S.C. 65 , 68 , 69 , 77 S.E., 751 ; Strickland v. Jones , 131 Ga. 409 , 62 S.E., 322 , 323 , 324 ; Tucker v. Weathersbee , 98 S.C. 402 , 406 , 82 S.E., 638 ; Gray v. Collins , 139 Ga. 776 , 78 S.E., 127 , 128 , 129 ; Younger v. Massey , 39 S.C. 115 , 17 S.E., 711 ; Barrett Co. v. Still , 102 S.C. 19 , 29 , 86 S.E., 204 ; Bank v. Dowling , 52 S.C. 345 , 366 , 29 S.E., 788 ; South Carolina Cotton Growers' Co-op. Ass'n v. English , 135 S.C. 19 , 133 S.E., 542 ; Epworth Orphanage v. Strange , 158 S.C. 379 , 155 S.E., 594 ; Bailey v. Blackmon , 3 F.2d 252 , 253 (C.C.A., S.C.).
One is presumed to intend the natural consequences of his act. Rice v. City of Columbia , 143 S.C. 516 , 543 , 141 S.E., 705 (3).
In the Rice case the Court uses this language, 143 S.C. 516 , at page 543, 141 S.E., 705 , 713 :
They solemnly assert their innocence of any intention to hinder, delay, or defraud the other creditors, as if their innocence can shield them from the presumption that they intended the natural consequences of their acts. The equity of the creditors generally to an equal distribution of the assets of the insolvent bank cannot be annihilated by such a quibble. It makes not a particle of difference that they intended simply to secure their deposits; the effect of their acts is all that needs to be considered. If they proved to be the means of thwarting that equity which so appeals to the judicial conscience, they will be utterly destroyed.
To sustain these transfers under the circumstances which appear beyond controversy would open wide the door for the most brazen acts of preference conceivable. All that the
transferee would have to prove would be that he did not intend to hinder, delay, or defraud the other creditors; a position which he would have no right to assume in view of the legal presumption that he intended the natural consequences of his acts.
Where a conveyance is made without an actual intent to defraud but without consideration, it is said that the conveyance will stand if the grantor reserves a sufficient amount of property to pay his creditors. Penning v. Reid et al. , 167 S.C. 263 , 283 , 284 , 166 S.E., 139 , 146 .
But this means a sufficient amount of property not merely at the time of the transfer, but an amount from which in the final analysis the creditors are able to collect their indebtedness in full. The Court in the Reid case said:
No rule is more clearly imbedded in the law of this state, than that a debtor must be just before he is generous. `The law will not permit one who is indebted at the time to give his property away, provided such gift proves prejudicial to the interest of existing creditors. The motive which prompts the donor to make the gift is wholly immaterial. If the donor is indebted at the time, and the event proves that it is necessary to resort to the property attempted to be conveyed away by a voluntary deed for the purpose of paying such indebtedness, the voluntary conveyance will be set aside, and the property subjected to the payment of such indebtedness upon the ground that it would otherwise operate as a legal fraud upon the rights of creditors, even though it might be perfectly clear that the transaction was free from any trace of moral fraud.' Jackson v. Lewis , 34 S.C. 1 , 12 S.E., 560 , 562 ; Miller v. Erwin , 129 S.C. 415 , 125 S.E., 36 ; Temple v. Montgomery , 157 S.C. 85 , 153 S.E., 640 , 641 , 647 ; Izard v. Middleton , Bailey Eq. [228], 236; Jenkins v. Clement , Harp. Eq. [72], 85, 14 Am. Dec., 698; Greene v. Mobley , 112 S.C. 275 , 99 S.E., 814 ; Magovern v. Richard , 27 S.C. [272], 286, 3 S.E., 340; Rice v. City of Columbia , 143 S.C. 516 , 141 S.E., 705 . * * *
If in the final event the property of the debtor is not sufficient to pay his debts existing at the time of his voluntary conveyance, then such conveyance is null and void as to such debts.
With these principles of law in mind we approach a discussion of the facts in the case. The transfers which are questioned in the second and third actions were made on November 1, 1930, on the same date that John K. Kirven filed his answer to the assault action brought by Idella Blackmon. The transfers were promptly recorded (Deed Book 176, p. 226; Deed Book 176, p. 227). These two instruments to Mr. Kirven's wife and daughter transferred all of his property, real and personal, with the exception of a real estate bond and mortgage which had previously been given by Fred W. Law to A. Hyman for $21,000.00, and assigned by A. Hyman to John K. Kirven. An estimate of the value of this property may be garnered from the actual testimony of John K. Kirven himself in the case of Ethel Kirven v. John K. Kirven , given in the Court of Common Pleas for Darlington County in 1929, in which Mr. Kirven, at page 80 of the record on appeal to the Supreme Court ( 162 S.C. 162 , 160 S.E., 432 ), on direct examination gave his net worth as $65,000.00, no testimony in the record indicating that the value of his property or holdings decreased substantially between that time and the date of the transfers.
John K. Kirven himself, in testifying on supplemental examination (reference of August 8, 1933, p. 19), makes no bones about his purpose in making the transfers:
Q. He (Mr. Want) didn't advise you not to make those deeds? A. He did at one time, but I had a good many reasons for it, your (Mr. Robinson) suing me for forty-five thousand dollars, another fake claim and I went to him to deed the property, and he advised me not to do it.
The testimony of Samuel Want, Esq. (reference, October 11, 1934, pp. 21-25), clearly shows that Mr. Kirven was fully advised as to the rights of his creditors.
From page 21: * * * and he had on that account (threatened litigation) proposed to me that the real estate which was in his name be conveyed by him to his wife and daughter, I got from him at that time, as his reasons for wanting to make the conveyances only the fact that he said he owed them money and that it looked like people were about to clean him out and he wanted to protect his wife and daughter. * * *
From page 25: It occurred to me then to suggest to him that if these conveyances were to be made and he consented to my making them that by reserving a reasonable amount of property from the standpoint of keeping him in position to pay any probable judgment that might be recovered in the Blackmon case , the conveyances could be properly made and I discussed the matter with him in that light. I should point out that at this time he was giving me some new reasons of which I happened to have heard from other sources. He said it was not merely the Blackmon case , but there were threatenings of litigation that were serious, as far as the amounts involved were concerned, from other persons.
In reaching a conclusion that John K. Kirven had the actual intent to hinder, delay, and defraud the plaintiff, Idella Blackmon, and possibly other creditors, the Court finds abundant evidence in the record in addition to his admission. For instance, Mr. Kirven is unable in his supplemental examination to say how much he was indebted to his wife and daughter or to give any satisfactory explanation as to where they obtained the moneys to lend or advance to him, and yet in asking Mr. Want to prepare the deeds he delivered over to Mr. Want an adding machine slip purporting to give the information in detail.
Neither Mr. Kirven nor his wife or daughter produced a receipt from Mr. Kirven to either of them showing any moneys advanced; none of them produced a canceled check, promissory note, or a bank statement showing withdrawals; not a scratch of a pen is offered to support his rather general testimony that he was indebted to his wife and to his
daughter, and no testimony from disinterested parties, bank tellers or officers, or any one else, indicating any knowledge that Mr. Kirven was indebted to either his wife or daughter.
It is remarkable that after giving his daughter in 1925 and at other times large sums of money in the form of cash or mortgages, that she should lend these amounts back to him without any evidence of indebtedness.
An actual intent to defraud is deducible from the fact that when John K. Kirven reserved the property to pay the Blackmon claim he chose to reserve the Fred Law bond and mortgage which was long past due, covering property on which the taxes had not been paid since 1926, executed by Fred W. Law, who had since relieved himself of personal obligation on the bond by bankruptcy, the land covered being worth perhaps five or six thousand dollars, and then, within a few months after transferring the rest of his property to his wife and daughter, pledged this bond and mortgage with the Peoples State Bank on April 7, 1931, failed to pay the note for which it was pledged, and permitted his daughter to obtain a claim on it and allowed title to it to be jeopardized, as set out herein.
In reaching a conclusion as to whether this actual fraud on the part of John K. Kirven is imputable to his wife and daughter, it is significant to remember that Mr. Kirven's daughter, Miss Emmie Kirven, is a law graduate and a member of the bar of this State. Mr. Kirven testified that when the deeds were drawn from him to his wife and daughter on November 1, 1930, for all of his property except the Law bond and mortgage, he did not consult with his wife or daughter, but had the deeds made out to them and promptly recorded. When we remember that Miss Kirven is a lawyer, that she and her mother were living with Mr. Kirven, that the transfers involved practically all of his property, that they lived in a comparatively small community, and that transfers of this character were generally talked about, it is inconceivable
that they had no knowledge of the transfer and of Mr. Kirven's intent with regard to the Blackmon claim.
If, however, Mr. Kirven's testimony is taken as literally true, then he acted as agent for the grantees, his wife and daughter, in the matter of receiving the deeds, and his fraudulent intent is imputable, as a matter of law, to Anna B. Kirven and Emmie B. Kirven. Miller v. Wroton , 82 S.C. 97 , 63 S.E., 62 , 449 .
Not only were the conveyances made with the actual intent to defraud Idella Blackmon; not only was this intent imputable to Mr. Kirven's wife and daughter, but the conveyances were not supported by valuable considerations. What has been said with regard to intent applies also to this feature of the case.
When we bear in mind the burden imposed by the law on members of the family to prove by clear and convincing testimony not only the bona fides of the transfers but also the consideration, and when we bear in mind the fact that neither the wife nor the daughter produced documentary evidence of any kind showing indebtedness by the husband and father to either of them, when we take into consideration their general statements of this indebtedness, and when we remember that John K. Kirven, under examination in 1929 in an action asking for punitive damages against him, testified to a net worth of $65,000.00 under the direct examination of that able and brilliant advocate, the late lamented Mendel L. Smith, who would undoubtedly have brought out this indebtedness to the wife and daughter if it had existed, we can reach only one conclusion, and that is that the conveyances are not supported by valuable consideration.
In this connection it is interesting to note that the South Carolina Supreme Court, in passing upon the arrest and bail case on substantially the same testimony, reached a similar conclusion. 173 S.C. 322 , 175 S.E., 814 .
It is clearly shown by the record that very soon after the commencement of the action the defendant by deeds
conveyed away the greater part of his real estate and in some way got rid of all of his property so that, when an execution was issued on the judgment obtained and placed in the sheriff's hands, the sheriff was unable to find any property out of which he could pay the judgment, and was, therefore, forced to make a nulla bona return. At the hearing in the supplementary proceedings, following the nulla bona
return, the defendant testified, in effect, that he then had no property out of which the judgment in question could be paid; and it also appeared from the testimony that defendant had conveyed his real estate to his wife and daughter from which act it may be reasonably inferred that defendant had in mind defeating any judgment the plaintiff might procure against him in said action. It appears from the testimony that the defendant undertook to show that he made the conveyances in satisfaction of certain obligations. Well, Judge Rice duly considered the testimony bearing on this issue, in connection with the entire record and circumstances surrounding the transaction, and, evidently not being satisfied with defendant's explanation of his acts and doings, reached a conclusion and rendered a decision contrary to defendant's contention. We cannot say that the trial Judge was wrong in his conclusion, but on the other hand, think that the testimony and record in the case supports his Honor's finding and conclusion, and think that. his Honor was fully warranted in issuing the order appealed from.
Having reached the conclusion that the transfers should be set aside as in violation of the Statute of Elizabeth, it is unnecessary for this Court to determine whether they are also void under the Assignment Act.
This brings the Court to a consideration of the question of title to the F.W. Law bond and mortgage. Briefly the facts with regard to this mortgage are that the mortgage was originally given by F.W. Law to A. Hyman for $21,000.00. It was assigned to John K. Kirven, who, after the transfers to his wife and daughter, pledged
this mortgage on April 7, 1931, to the Peoples State Bank of South Carolina as collateral security for a note of $775.00. This note had been reduced to $525.00 at the time of the closing of the Peoples State Bank January 2, 1932. The note was not paid, and on December 6, 1932, Samuel Want, Esq., who represented the Receivers of the Peoples State Bank in Darlington County, advised the Receivers of that bank that Mr. Law was insolvent, that the mortgaged property had been sold for taxes which were outstanding for six years, and advised that Mr. John K. Kirven's probable purpose in allowing it to be sold for taxes was to buy it in cheap himself and defeat the claim of the bank on the note.
Subsequently the note was placed by the Receivers of the Peoples State Bank and their general attorneys in Columbia with Mr. Want for collection. Mr. Want advertised the bond and mortgage for public sale and advised the Receivers that the property had been withdrawn from sale and that satisfactory arrangements had been made with the debtor.
Thereafter, as testified to by Mr. Want and Mr. Hyman, it appears that without further advices from the Receivers of the Peoples State Bank the mortgage was actually put up and bid in by Mr. Want for the Receivers of the Peoples State Bank, and there was testimony indicating that he made an oral agreement with Miss Emmie Kirven that, if she would pay the balance due on the note, some $525.00, he would have the bond and mortgage transferred to her. She had not made this payment at the time of the appointment of Mr. Gardner as Receiver of John K. Kirven, and he filed a petition in the Peoples State Bank receivership in the Federal Court asking that the Law bond and mortgage be turned over to him as Receiver for John K. Kirven. That Court simply referred the issue to this Court by ordering the bond and mortgage transferred to Mr. Gardner, as Receiver, without prejudice.
After issues joined in these cases and after the time of oral argument before me, Emmie B. Kirven waived any claim she had to the actual bond and mortgage, other than
the claim of a lien growing out of her payment on the balance due on the note to Peoples State Bank amounting to some $525.00, and because of her payment of other lawful expenditures in reference to the Law property.
It therefore becomes unnecessary for this Court to decide whether there was an actual public sale of the Law bond and mortgage, or whether there was an actual contract between the Receivers of the Peoples State Bank and Miss Emmie Kirven, or whether the Receivers or Mr. Want had authority to make such an agreement. The sole issue remaining is whether Miss Emmie Kirven is entitled to any lien on the bond and mortgage.
The evidence in the record is not sufficient to determine whether Miss Kirven has been reimbursed from the rents and profits from the property for any amount which she may have advanced for the assignment of this collateral. The record shows, however, that the property covered by the Law bond and mortgage has been actually transferred of record to Miss Emmie B. Kirven. The Court has therefore reached the conclusion that since the withdrawal of Miss Kirven's claim to the actual title to this bond and mortgage, and since she now has title to the land covered by the bond and mortgage, the proper solution and determination of the issues in regard thereto is to order the Receiver to foreclose the mortgage in this action, making not only Miss Kirven, but any other claimants to the property, parties and directing that out of the proceeds of sale of the mortgaged property there shall first be paid the costs of the action, the taxes, any amount which may be due to Miss Emmie B. Kirven by way of lien, the balance to be applied by C.E. Gardner, Receiver, to the costs of the receivership and to the payment of the Blackmon judgment.
By thus requiring Emmie B. Kirven to account in this action for any moneys which have been received by her and any moneys which have been spent by her, and in giving her a lien for the balance, if any, which is due to her, the equities of the parties will be preserved with regard to this property.
I therefore make the following findings of fact and of law:
1. The transfers of November 1, 1930, from John K. Kirven to Anna B. Kirven, his wife, and Emmie B. Kirven, his daughter, transferred all of the real and personal property of John K. Kirven with the exception of the Fred Law bond and mortgage.
2. These two transfers were made by John K. Kirven to his wife and daughter with the actual intent and purpose on his part to hinder, delay, and defraud his creditors, particularly Idella Blackmon.
3. Under the facts of these cases and the law applicable, the actual fraud of John K. Kirven in making these transfers is imputable to the grantees, Anna B. Kirven and Emmie B. Kirven, his wife and daughter, respectively.
4. The two conveyances of November 1, 1930, were voluntary conveyances and were not supported by valuable consideration.
5. The defendants, Emmie B. Kirven and Anna B. Kirven, the daughter and wife of John K. Kirven, have failed to show by clear and convincing testimony, as required by law, that the transfers to them were either bona fide or supported by valuable consideration.
6. The property which John K. Kirven retained to satisfy the claim of Idella Blackmon and his other creditors, to wit, the bond and mortgage of Fred W. Law, was insufficient at the time of the conveyances and at the time the judgment should have been paid after affirmance by the Supreme Court in July, 1933, to satisfy the Idella Blackmon claim; and, after the transfers to his wife and daughter, John K. Kirven was in fact insolvent.
7. Under the Statute of Elizabeth the transfers to Emmie B. Kirven and to Anna B. Kirven are null and void because they were made with the actual intent of defrauding the creditors of John K. Kirven to the knowledge of the transferees and because they were not supported by valuable consideration.
8. The conclusion of the Court to the effect that the transfers are void under the Statute of Elizabeth makes unnecessary a decision as to whether they are also void under the Assignment Act.
9. The Fred W. Law bond and mortgage heretofore pledged by John K. Kirven to the Peoples State Bank is declared to be the property of C.E. Gardner, as Receiver of John K. Kirven, subject to a lien thereon in favor of Emmie B. Kirven on account of moneys advanced by her to pay the collateral note of John K. Kirven at the Peoples State Bank, and on account of other lawful expenditures, if it develops upon an accounting being had between Emmie B. Kirven and C.E. Gardner, as Receiver, that she has failed to reimburse herself in full for the rents and profits from the property covered by the Fred Law mortgage.
10. Conditions with regard to farm values and property have substantially improved since July, 1933, and, while this Court has found that the Fred W. Law bond and mortgage were insufficient to pay the claim of Idella Blackmon on November 1, 1930, the time of the transfers involved in these actions, and at the time of the affirmance of her judgment against John K. Kirven in July, 1933, it may be that at the present time that property will bring a sufficient amount to pay the costs of these actions, any lien which Emmie B. Kirven may have thereon and the Idella Blackmon judgment. I have therefore concluded to direct that the Law mortgage be realized on prior to the sale of the property embraced in the conveyances to Anna B. Kirven and Emmie B. Kirven.
11. In view of the fact that certain of the transactions involved in these cases were handled through the legal offices of Samuel Want, Esq., the Court desires to take this opportunity of saying that what has been said with regard to the fraudulent character of certain of these transactions is intended in no wise to reflect upon the integrity or professional standing of Mr. Want. In the Court's contact with Mr. Want, the latter has been found to be a profound student
of the law, and a man of integrity, character, and reputation, and, while the conveyances in these cases are being set aside by the Court, there is nothing in the record which casts any reflection upon Mr. Want. On the contrary, it appears that he fully and frankly advised John K. Kirven as to his rights to make these conveyances and carefully warned him of the necessity of reserving a sufficient amount of property to satisfy the Blackmon claim.
It is therefore ordered and adjudged:
1. That C.E. Gardner, as Receiver for John K. Kirven, do file a supplemental bill in the first above-entitled action, naming as defendants Emmie B. Kirven and any other proper parties, asking for the foreclosure of the Fred W. Law bond and mortgage, the title to the property covered by the mortgage now being in the name of Emmie B. Kirven. In that action Emmie B. Kirven is directed to file an accounting of the rents and profits from the Law property, to file her statement of receipts and disbursements, and, if it appears in that proceeding that she has not been fully reimbursed for the moneys advanced by her to pay the collateral note at the Peoples State Bank and for other lawful expenditures, she shall have a lien for the balance due her out of the proceeds of the foreclosure prior to the claim of the judgment of Idella Blackmon.
The Court has reached the conclusion that a fairer realization would be had from this security by foreclosing the mortgage rather than by selling the bond and mortgage at public auction. This conclusion is reinforced by the fact that the title to the property, according to the records, is now in Miss Emmie B. Kirven. Therefore, out of the proceeds of the foreclosure sale there shall first be paid the costs of the action, including reasonable attorney's fees and Receiver's commissions to be fixed by the Court, taxes, the lien claim of Emmie B. Kirven, and the balance applied by C.E. Gardner, as Receiver, to the receivership costs and expenses and the judgment claim of Idella Blackmon.
2. If the net proceeds from this foreclosure sale as set out above are insufficient to pay the judgment claim of Idella Blackmon in full, C.E. Gardner, as Receiver of John K. Kirven, is directed to advertise for sale the properties transferred in the deeds of November 1, 1930, to Emmie B. Kirven and Anna B. Kirven, to sell the same at public auction and to apply the proceeds thereof in satisfaction of the costs of the receivership and the judgment claim of Idella Blackmon.
3. Since at this time it is not clear what further services will be required of the Receiver and his counsel, no compensation is fixed in this order, but permission is granted to apply on proper notice to the Court of Common Pleas for Darlington County to fix proper compensation for services.
4. Any party to this action is granted permission to apply at the foot of this decree for a subsequent order carrying out the provisions hereof. Source: CourtListener
/184/sc/37 · .json · Public domain 