People's Loan & Exchange Bank v. Garlington

• Decision Date: 20 March 1899
• Citation: 32 S.E. 513,54 S.C. 413
• Parties: PEOPLE'S LOAN & EXCHANGE BANK OF LAURENS v. GARLINGTON et al.
• Court: South Carolina Supreme Court

32 S.E. 513

54 S.C. 413

PEOPLE'S LOAN & EXCHANGE BANK OF LAURENS v. GARLINGTON et al.

Supreme Court of South Carolina

March 20, 1899

Appeal from common pleas circuit court of Laurens county; W. C Benet, Judge.

Action by the People's Loan & Exchange Bank of Laurens against John D. Garlington and others. Judgment for plaintiff, and defendant John G. Williams appeals. Affirmed.

The following is the case agreed upon:

This action was commenced on the 16th day of January, 1895, in the court of common pleas for Laurens county, by service of the following complaint:

"The complaint of the above-named plaintiff shows to the court (1) That said plaintiff, the People's Loan & Exchange Bank of Laurens, South Carolina, is now, and was at the times hereinafter mentioned, a corporation duly chartered by and organized under the laws of the state of South Carolina, and is competent to sue and be sued in the courts of this state. (2) That on or about February 13, 1892, the said defendant John D. Garlington made and delivered to said plaintiff his promissory note in writing, whereby he promised to pay said plaintiff or order four hundred and eighty-four 85/100 dollars on November 1st after the date thereof (1892), with interest after maturity at the rate of eight per cent. per annum. (3) That on or about the said 13th day of February, 1892, the said defendant John D Garlington, in order to better secure the payment of said debt, executed and delivered to said plaintiff an instrument in writing, under his hand and seal, commonly called a 'mortgage,' whereby he granted, bargained sold, and conveyed to said bank, by way of mortgage, all that lot, tract, piece, or parcel of land situate, lying, and being in said county and state, containing sixteen hundred and forty-five acres, more or less, and bounded by lands of Ph be Y. Witherspoon, Golden, John G. Williams, et al.; also, all his interest (being one-half) in and to all that lot, tract, piece, or parcel of land containing sixteen hundred acres more or less, bounded by his other lands, by lands of the state of South Carolina and others, and known as the 'Spring Grove Place,' conditioned to pay said debt, interest, and an attorney's fee, in case the debt had to be collected by law. (4) That said mortgage was duly recorded in the office of R. M. C. for said county on the 24th day of February, 1892, in Book 12, p. 671. (5) That the tract of land first above set out has been sold under a prior mortgage, leaving no proceeds for junior liens. (6) That said plaintiff has incurred ten per cent. attorney's fee upon the amount due by said defendant, by reason of his failure to pay said debt, and by reason of this suit. (7) That on or about the 22d day of January, 1894, the said John D. Garlington, in order to better secure the payment of said debt, and in order to get indulgence thereon to December, 1894, made and delivered to said plaintiff his other obligation in writing, under his hand and seal, commonly, called a 'mortgage,' whereby he granted, bargained, sold, and conveyed to said plaintiff, by way of mortgage, all that other lot, tract, piece, or parcel of land, situate, lying, and being in said county and state, containing two hundred and seventeen acres, more or less, and bounded by lands of Dr. F. G. Fuller, Witherspoon, Bailey store lot, Mr. J. L. Young, and others, and known as his 'Milton Place,' conditioned to pay said debt, interest, and ten per cent. attorney's fee, when due. (8) That in and by said mortgage the said Garlington agreed, if said debt was not paid on December 1, 1894, that he would surrender possession of said premises to said bank, and that it should receive the rents and profits thereof thereafter. (9) That said mortgage was duly recorded in the office of R. M. C. for said county on January 22, 1894, in Book 14, p. 144. (10) That said debt is now due and owing the bank, and the conditions of said mortgages have been broken, and no part of said amount, nor interest nor attorney's fee, has been paid. (11) That the defendant John D. Garlington is insolvent, and the rents of the Milton place are in danger of being lost to plaintiff. (12) That the defendants John G. Williams and T. E. Hairston claim some interest in and to said premises, which plaintiff denies. (13) That it appears from the records in the office of clerk of the court of common pleas for said county that the defendants other than those mentioned in the last paragraph claim some interest in said property by way of junior liens. (14) Wherefore plaintiff asks that a receiver be appointed to take charge of the Milton place, and receive the rents and profits thereof, and the defendants be enjoined from disposing of the rents thereof, or from interfering therewith; that the mortgages be foreclosed, the premises sold, the proceeds be applied to the payment of said debt, interest, and costs, the defendants and all parties claiming under or through them be forever barred of their equity of redemption; and that the rights of all the parties to this action in said lands be adjudicated; and for the costs of this action, together with such other and further relief as to the court shall seem just and equitable. N. B. Dial, Plaintiff's Attorney."

Answer of John G. Williams.

"The defendant, John G. Williams, answering the complaint in the above-stated action, for a first defense: (1) Alleges that he has not information sufficient to form a belief as to the allegations of the complaint, except as to the allegation in the twelfth paragraph thereof, that this defendant claims some interest in the premises described in the complaint. In regard to that allegation, he alleges that he is the owner, and entitled to retain the possession, of Spring Grove, but he does not claim any interest in any other of the lands described in the complaint. For a second defense: (2) Alleges that neither the plaintiff nor his alleged mortgagor has any title to or interest in Spring Grove. Norton & Stribling, Attorneys for John G. Williams."

Answer of F. W. Wagener & Co.

"The defendants F. W. Wagener & Co. answer the complaint herein as follows: (1) They have no knowledge, or information sufficient to form a belief, as to the allegations contained in the complaint. (2) They allege that they are the owners and holders of a judgment against the defendant John D. Garlington, recovered in the court of common pleas for Laurens county on the 18th day of February, 1892, which together with the costs on the same, amounted at the time of entry to eight hundred and sixty-two and forty-eight one-hundredth dollars; that the said judgment was duly entered, docketed, and enrolled in said office on the 3d day of March, A. D. 1892. Wherefore the said defendants prays that they may have such relief as to the court may seem just and equitable. Ferguson & Featherstone, Defendants' Attorneys."

Answer of Ferguson & Featherstone.

"The defendants John W. Ferguson and C. C. Featherstone, partners practicing law under the firm name of Ferguson & Featherstone, answer the complaint herein as follows: (1) They have no knowledge, or information sufficient to form a belief, as to the allegations contained, except so much thereof as alleges that these defendants claim some interest in the premises described in the complaint, by way of lien. This they admit, but they deny that the lien claimed by them is junior to that of plaintiff. (2) The said defendants allege that on the 7th day of December, 1891, the defendant John D. Garlington confessed judgment to them in the sum of one thousand dollars, and at a cost of nine and 90/100 dollars, which said judgment was on the 7th day of December, 1891, duly entered, docketed, and enrolled in the office of the clerk of court for Laurens county; that on the same day execution was duly issued on said judgment; that no part of said judgment has been paid, and these defendants are the owners and holders thereof. Wherefore defendants pray that they may have such relief as to the court shall seem just and proper. Ferguson & Featherstone, Defendants' Attorneys."

Answer of Annie H. Garlington.

"The answer of the defendant Annie H. Garlington in the above-stated cause respectfully shows to the court: (1) She has no knowledge of the facts set forth in the complaint, except those hereinafter referred to, but supposes them to be true. (2) That on the 2d day of March, 1892, she secured a judgment against the defendant J. D. Garlington, in the court of common pleas for Laurens county, for the sum of five hundred and twenty dollars, together with ten dollars costs of suit, which was duly entered and enrolled on the same day, and no part thereof has been paid. Wherefore she demands such relief in the premises as she may be entitled. W. H. Martin, Attorney for Defendant Garlington."

It was referred to F. P. McGowan, Esq., special referee, to take the testimony.

Testimony.

"Reference held, pursuant to notice, November 19, 1897. Present for plaintiffs, Mr. Dial; Ball & Simkins, for John G. Williams Ferguson & Featherstone, for F. W. Wagener and themselves. Counsel present the following statement: The Milton Mill tract and the White plains place are eliminated from this proceeding, the same having been otherwise sold and disposed of. The corporate capacity of the plaintiff admitted. Plaintiff introduces in evidence note and mortgage executed by John D. Garlington to the plaintiff on February 13, 1892 in the sum of $484.85, and marked 'Exhibit A,' and recorded in R. M. C. for Laurens February 24, 1892. The plaintiffs' attorney and attorneys for defendants agree that ten per cent. of the plaintiff's debt is a reasonable attorney's fee, as provided for in the above-named mortgage. The will of John D. Williams introduced in evidence, and the...