Miles v. Gadsden

• Decision Date: 20 December 1926
• Docket Number: 12128.
• Citation: 137 S.E. 204,139 S.C. 52
• Parties: MILES v. GADSDEN et al.
• Court: South Carolina Supreme Court

137 S.E. 204

139 S.C. 52

MILES v. GADSDEN et al.

No. 12128.

Supreme Court of South Carolina

December 20, 1926

On Petition for Rehearing March 18, 1927.

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

Foreclosure suit by Adeline J. Miles against Archie Gadsden and another. From a decree allowing plaintiff part only of relief sought she appeals. Affirmed.

Cothran J., dissenting.

The following is the master's report, confirmed by the decree appealed from:

This is an action for foreclosure of mortgage of real estate referred to me by order dated the 17th day of October, 1924.

I have held references the minutes of which, together with the bonds and mortgages in suit, are herewith filed.

I find that on the 22d day of December, 1920, the defendant Archie Gadsden executed and delivered to Adeline J. Doscher, now the plaintiff, Adeline J. Miles, his bond conditioned for the payment of the principal sum of one thousand ($1,000.00) dollars, three years from date, with interest at the rate of eight (8) per cent. per annum, payable quarterly, and that on said 22d day of December, 1920, the said Archie Gadsden executed and delivered to the said plaintiff his mortgage, reciting the said bond and his intention to secure the same, of the premises on the west side of Norman Street in the city of Charleston, described in the complaint, which mortgage contained the usual clauses for the payment of taxes, insurance, and attorney's fees, and was duly recorded in the R. M. C. O. for Charleston county in Book H-31, p. 90.

I find that the said Archie Gadsden, on the 10th day of January, 1923, executed and delivered to the defendant Mrs. R. W. Seymour his bond conditioned for the payment of the principal sum of seven hundred thirty-eight dollars and sixty-five cents ($738.65) on the 1st day of January, 1924, with interest at eight (8) per cent. per annum, payable quarterly, and that on said day, in order to secure the payment of the said bond, the said Archie Gadsden executed and delivered to Mrs. R. W. Seymour his mortgage of the premises on the west side of Norman street subject to the mortgage to the plaintiff herein, which mortgage contained the usual clauses for the payment of taxes, insurance, and attorney's fees, and was duly recorded in the R. M. C. O. for Charleston county in Book M-30, p. 312.

The sole question at issue is as to the amount due upon the bond and mortgage of Archie Gadsden to Adeline J. Doscher.

I find that Gadsden paid to the late A. A. Kroeg, on the 27th day of June, 1921, the sum of two hundred ($200.00) dollars on account of the principal of this bond. It appears that Kroeg represented Gadsden in securing the loan and represented the plaintiff as attorney in examination of the title and execution of papers, and that interest payments were regularly made by Gadsden to Kroeg for the plaintiff's account. There was no testimony to show that Kroeg was the authorized attorney for the plaintiff to receive and receipt for payments on account of the principal. Upon the death of A. A. Kroeg in February, 1922, P. M. MacMillan and John T. Witsell were appointed administrators of the said estate, and at that time and for some time thereafter it appeared that the estate was solvent. Gadsden filed a claim with the administrators of Kroeg for this payment, in which he stated that the payment had been made on account of the Doscher mortgage. This claim appears to have been filed at the instance of E. K. Hinson, who was employed by or associated with Kroeg at the time of his death, and thereafter undertook to represent a number of creditors of the Kroeg estate. Thereafter, in proceedings entitled E. L. Jager et al., Executors, against MacMillan and Witsell, Administrators of Kroeg, the settlement of the Kroeg estate was brought under the jurisdiction of this court and the creditors notified to file their claim with me as master. Thereafter Freda C. Doscher, the authorized agent of the plaintiff, filed her petition and claim in the said cause, alleging under oath that various collections, including the payment of Archie Gadsden on account of the Doscher mortgage above referred to, were made by the said A. A. Kroeg prior to his death, and that said amounts are due to be paid to petitioner by the said estate. However, no claim was filed by Gadsden with the master. I am of the opinion that the claim against the estate of Kroeg was abandoned by Gadsden and that the filing of the claim by the plaintiff's agent was a ratification of the payment by Gadsden to Kroeg for the account of Doscher as a credit on the mortgage debt. This claim has been passed in favor of the plaintiff in the Jagar proceeding.

As stated, the administrators of the estate of Kroeg considered the estate solvent, but it then came to appear, from the number of claims filed and the nature of the assets, that claims against the estate would not be paid in full.

Subsequent to the death of Kroeg, a number of payments were made by Gadsden to E. G. Hinson, who represented the plaintiff, during the period covered by such payments, as attorney, but without authority to receive and receipt for payments on account of this debt. Gadsden was, however, required to pay interest on the amount of the original indebtedness upon Hinson's assurance that, upon settlement of the Kroeg estate, the matter of interest payments would be adjusted.

Some time during this period, Brantley Seymour, Esq., representing Gadsden, computed the amount due to the plaintiff on the Gadsden mortgage debt from receipts held by Gadsden for payments made to both Kroeg and Hinson, and paid over to Hinson, in full settlement of the amount due, the sum of six hundred eighty-five ($685.00) dollars with confidence that Hinson was either authorized to accept the settlement, or, as a reputable attorney, he would secure for record a satisfaction of the mortgage and a discharge of the bond. Being unable to obtain the satisfaction and discharge through Hinson, Mr. Seymour had the good fortune to obtain a refund from Hinson of this six hundred eighty-five ($685.00) dollars, which amount he paid over, on the 17th day of September, 1924, after the institution of this proceeding, to plaintiff's attorneys in full, or part settlement of the amount due, as the court might determine.

I find that the bond of Gadsden to Doscher is subject to credit of two hundred ($200.00) dollars on account of principal, as of the 27th day of June, 1921, with quarterly payments of twenty ($20.00) dollars each on account of principal and interest up to the March quarter of 1924, leaving due upon the bond so secured by the said mortgage the balance of that date, with ten (10) per cent. as attorney's fees as provided in and by said mortgage, subject to the credit of six hundred eighty-five ($685.00) dollars paid to plaintiff's attorneys on the 17th day of September, 1924.

I find that there is due upon the bond of Archie Gadsden to Mrs. R. W. Seymour the sum of three hundred eighty-eight dollars and sixty-five cents ($388.65) with interest at eight (8) per cent., payable quarterly, from the 1st day of October, 1924.

I therefore respectfully recommend that, upon payment by the defendant Archie Gadsden to the master herein of the sum herein found to be due to the plaintiff, to be computed to the date of such payment, this cause be decreed to be settled and ended.

I further recommend that, upon failure of the defendant Archie Gadsden, within thirty (30) days from final adjudication of the question here raised, to make the settlement herein recommended, the master be in that event authorized and directed to sell the mortgaged premises by public auction, after due advertisement, at Charleston Real Estate Exchange, in the city of Charleston, upon such terms as the court shall direct, and apply the proceeds of sale, after the payment of proper costs and expenses of this proceeding and of such sale and of any liens for past-due taxes assessed against the mortgaged premises, to payment of the respective mortgage liens herein reported, and that the balance, if any, be returned to Archie Gadsden.

Miller, Huger, Wilbur & Miller and John J. Murray, all of Charleston, for appellant.

Barnwell & Grimball and Brantley Seymour, all of Charleston, for respondents.

Order on Petition for Rehearing.

Filed March 18, 1927.

It appearing to the court that in the former opinion, filed in this cause, the matter of the ratification of the agency of Kroeg by the plaintiff appellant may not have been fully passed upon, it is therefore ordered and adjudged that the former opinion in this cause be, and the same is, hereby withdrawn, and that the annexed opinion be declared the opinion of the court in this cause, and that the same shall be filed and substituted for the former opinion.

It is further ordered that the petition for a rehearing in this cause be, and the same is, hereby dismissed.

R. C. WATTS, C.J.

EUGENE S. BLEASE, A. J.

JOHN G. STABLER, A. J.

C. J. RAMAGE, A. A. J.

I dissent: T. P. COTHRAN, A. J.

Opinion.

Ordered Substituted for Opinion Filed in Above Case December 20, 1926.

BLEASE, J.

This court is entirely satisfied with the report of F. K. Myers, Esq., master for Charleston county, in the above-entitled cause, which was confirmed by the decree of the late Hon. R. W. Memminger, circuit judge. Let the report of the master be reported.

It is therefore ordered that the decree of the circuit judge be affirmed.

WATTS, C.J., and STABLER, J., and RAMAGE, A. A. J., concur.

COTHRAN J., dissents.

COTHRAN, J. (dissenting).

On account of the fact that the opinion first filed in this case has been withdrawn, the dissenting opinion heretofore filed by me is also withdrawn, and...