97 S.C. 136

Talbert v. Talbert

Decided April 20, 1914

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Affirmed · Decided 1914-04-20

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Cited by 3 later decisions — most recently February 2008

1 federal appellate · 1 state decisions

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Mr. Chief Justice Gary,

¶1 dissenting. I dissent on the ground, that the testimony shows that the plaintiff was not a bona fide holder of the note and mortgage herein.

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Status

Disposition: Affirmed

Case posture

Disposition: Affirmed.
Posture: Before SHIPP, J., Abbeville, December, 1913. Affirmed.Action by Mrs. M.L. Talbert against John L. Talbert, The Farmers Bank and G.J. Sanders, Trustees in Bankruptcy, for foreclosure of a mortgage. The Farmers Bank appeals. The decree of the Circuit Court was as follows: The complaint in the above stated case is for the foreclosure of the mortgage executed by the defendant, John L. Talbert, to the Bank of McCormick, dated March 30th, 1908, covering the lot described in the complaint and securing a note of the same date, payable one year after date, in the sum of two thousand seven hundred eighteen and 29-100 ($2,718.20) dollars, with interest after maturity at the rate of eight per cent. per annum, and providing that if the note be collected by an attorney that the said John L. Talbert would pay ten per cent. attorney's fees for the collection thereof, in addition to the principal and interest. The execution of the note and mortgage is admitted by the Farmers Bank of McCormick, which is the only party answering the complaint. The other parties have made default. The Farmers Bank of McCormick denies in its answer served herein that the note and mortgage have been assigned to the plaintiff herein, as alleged in her complaint, but alleges that at the time of the alleged assignment, the money paid to the Bank of McCormick was furnished by John L. Talbert and that the mortgage was in fact paid off, but that if it was assigned, it was for the purpose of defrauding creditors, existing or subsequent. The defendant, the Farmers Bank, also alleges that subsequent to the date of the alleged assignment, the said John L. Talbert, in certain transactions, became largely indebted to the bank, and that although the money was furnished by him to pay off the mortgage, nevertheless, it was assigned to his mother, the plaintiff, Mrs. M. L. Talbert, for the purpose of defrauding his subsequent creditors, and that they entered into a conspiracy to this effect. He further alleges that the plaintiff, Mrs. M.L. Talbert, well knew that he was borrowing large sums of money from the defendant, the Farmers Bank of McCormick, and that he was representing the mortgage to be paid and that she acquiesced in the statement and assisted him in defrauding the bank. The whole question turns upon whether or not there was an assignment in this case and as to whether the plaintiff bona fide purchased the note and mortgage upon which the action is based. The testimony shows that the mortgage is lost. H.Q. Talbert, who was the managing agent for the plaintiff, and John L. Talbert, both testify that the mortgage in this case was deposited with the Farmers Bank for safe-keeping along with the deed and insurance policy, which the bank produces, and the officers deny this. Notice was given to the bank to produce the papers, which it failed to do for the reason, as stated by the officers, that they did not have the papers. The Talberts, both, testify that they have searched in every other place where the paper might be and they have been unable to find it. It appears to the Court that it is not within the power of the plaintiff to produce the paper, and secondary evidence as to the contents of the alleged assignment is therefore admissible and it is so held. Besides this, the testimony shows that the note and mortgage were purchased and that the consideration for the assignment was actually paid and the note and mortgage were delivered to the agent of the plaintiff herein. If this was her money and the transaction was bona fide , the delivery of the papers upon the payment of the purchase money therefor was a sufficient assignment to be enforcible in a court of equity, and it is so held and adjudged. The question, then, for consideration is: Did the plaintiff, Mrs. M.L. Talbert, purchase the note and mortgage bona fide? The testimony abundantly proves, and I find, that about February 20th, 1909, she purchased the note and mortgage and took an assignment therefor. I find from the testimony, that at such time she had on hand about the sum of one thousand three hundred dollars, which she had obtained from a dividend in the matter of Britt Company, bankrupts, and from the sale of cotton and stocks, and in various ways. On that date, or thereafter, John L. Talbert, gave her a check for four hundred dollars on a debt which was due her, as he testifies, for lumber in building the house on the lot now sought to be sold. There is no testimony to dispute this. Six hundred dollars of the money, the plaintiff borrowed from Mrs. Corriesande Talbert, wife of John L. Talbert, giving her a note therefor dated February 20th, 1909, and the books of the bank show that the check for this amount of money was paid two days later. Her son, R.C. Talbert, a very short while before, had received from the bankrupt estate of Britt Company two hundred twenty-six and 34-100 dollars and out of this sum he gave his mother two hundred and twenty-five dollars, with which she purchased this mortgage, and he and his father, H.Q. Talbert, on November 20th, 1909, borrowed about two hundred dollars more from the bank of McCormick, which made up the amount of the mortgage. There is no testimony to dispute any of these facts and the Court must consider this as established. Such being the case, the Court finds, as a matter of fact, that Mrs. M.L. Talbert did purchase the note and mortgage on February 20th, 1909, or thereabouts, and that she paid the purchase money therefor and took a valid and bona fide assignment of the note and mortgage. Counsel for the defendant bank called attention to the fact that John L. Talbert's check and the check of Mrs. Corriesande Talbert were not paid until February 22d, when the testimony shows that the assignment of the mortgage was on February 20th, 1909, and that some of the witnesses testified that the purchase price of the assignment was all paid in currency. This happened a considerable time ago, and the witnesses may be easily mistaken as to the medium of payment. The greater portion of the consideration was likely paid in currency, but it seems likely to the Court that the four hundred dollar check of John L. Talbert and the check of six hundred dollars of Mrs. Corriesande Talbert were delivered to the bank as a part of the consideration of the assignment, and that they were not cashed until two days later. The testimony certainly shows that these two checks entered into the purchase of the note and mortgage. Counsel for the defendant has failed to offer any testimony going to show that either plaintiff knew John L. Talbert was borrowing large sums of money from the defendant bank, or that she entered into any conspiracy to defraud the bank, or that she knew of any likelihood that the bank would be defrauded. The mortgage which she purchased was on record and it was notice to the world that it was outstanding and even if she had known that John L. Talbert was dealing with the bank, there was no requirement of law that she should notify the bank that she intended to claim a lien under a mortgage which was of record and which was itself notice of the lien. If John L. Talbert had furnished the money to pay for the mortgage and had it assigned to his mother with the intention of withholding his property from creditors, even though subsequent creditors, and she had entered into the scheme with him to defraud the subsequent creditors, the assignment would be void, but there is no testimony to establish such fact and I cannot so find. All the testimony as to the conversation between John L. Talbert and bank officers is incompetent as to plaintiff, as is the testimony as to conversation between bank officers and officers of the Bank of McCormick. Upon consideration of all the testimony in this case, I am of the opinion that the plaintiff is entitled to a foreclosure of the mortgage for the payment of the mortgage debt. Lis pendens having been duly filed and proof of default having been made as to the defendant, G.J. Sanders, as trustees in bankruptcy of John L. Talbert, and John L. Talbert, and it appearing to the Court that there is due upon the plaintiff's mortgage debt the sum of three thousand seven hundred fifty and 12-100 ($3,750.12) dollars, together with ten per cent. of the said amount as attorney's fees, making a total of four thousand one hundred twenty-five and 11-100 ($4.125.11) dollars. It is ordered, adjudged and decreed, that the premises described in the complaint be sold by the master of Abbeville county, at public auction at Abbeville courthouse, on sales day in January next, or some succeeding sales day, without the further order of the Court, for cash, after due advertisement and public notice, as required by law. It is further ordered, that upon the compliance with the terms of sale, the master do execute to the purchaser at such sale, good and sufficient title in fee simple to the premises so sold. It is further ordered, adjudged and decreed, that out of the proceeds of sale, the master do pay any taxes and assessments due against the said lands, and that he do next pay the costs and disbursements of this action, to be hereafter taxed, except the costs of defendant's witnesses, and that he do also pay the expenses of such sale and that the balance of the proceeds of sale, or so much as shall be necessary to pay the same in full, be applied to the payment of plaintiff's mortgage debt, as above reported with interest at seven per cent. from October 20th, 1913. It is further ordered, that the master do take receipts for all sums so paid, and that he file them in his office and keep them on file, and that he do report his proceedings hereunder with all convenient speed, certifying the amount remaining due, if any, upon the mortgage debt of the plaintiff, after the sale of the said premises. It is further ordered, that the purchaser at such sale be let into possession of the said premises upon the production of the master's deed thereto. It is further ordered, adjudged and decreed, that should the purchaser at such sale fail to comply with the terms of sale within five days thereafter that the master do resell the said premises on the same or any succeeding sales day, without the further order of the Court on the same terms and conditions and at the risk of the former purchaser. And, it is further ordered, adjudged and decreed, that the defendants, and each of them be forever barred and foreclosed of all right, title, interest and equity of redemption of, in, or to the said premises, or any part thereof. The following is a description of the premises ordered sold: "Lots Nos. 7 and 8 of land, situate, lying and being in the town of McCormick, in the county of Abbeville. State of South Carolina, each lot having a frontage of one hundred feet on Cherry street and running back two hundred feet to the back lots Nos. 3 and 4, in the same block, being the lots in town of McCormick, on which is situated the residence at that time, and now occupied by said John L. Talbert, as a residence." S.W.G. Shipp, Judge Eighth Circuit. December 14th, 1913.

Source: CourtListener