Annely v. De Saussure

• Decision Date: 30 October 1879
• Docket Number: CASE No. 765.
• Citation: 12 S.C. 488
• Parties: A. L. ANNELY ET AL. v. W. G. DE SAUSSURE, EXECUTOR, ET AL.
• Court: South Carolina Supreme Court

12 S.C. 488

A. L. ANNELY ET AL.

v.W. G. DE SAUSSURE, EXECUTOR, ET AL.

CASE No. 765.

Supreme Court of South Carolina.

Oct. 30th, 1879.

1. Findings of fact by a referee in an equity cause, concurred in by the Circuit judge, reversed, as being without evidence to sustain them.

2. Where an executrix, who is also a legatee, sues a mortgagor for the foreclosure of a mortgage given her testatrix, making the other legatees parties defendant, and the mortgage is declared satisfied by the Circuit Court, whose judgment, upon appeal by the executrix alone, is reversed- Held, that the reversal cannot benefit the defendant legatees not appealing, and to the extent of their interests in the estate, the executrix cannot recover.

3. An attorney has implied authority to obtain and enforce satisfaction of his client's demands, and to bind him as a party litigant in certain matters appertaining to the conduct of his causes, but has no general power to contract independently in relation to such demands nor to transfer them. Per WILLARD, C. J.

4. A forfeiture to the state for taxes, but with the right of redemption existing, does not extinguish the lien of a mortgage. Per WILLARD, C. J.

5. The state is not a proper party to an action for the foreclosure of a mortgage upon lands which have been forfeited to the state for non-payment of taxes. Per WILLARD, C. J.

6. When unpaid taxes constitute a lien upon mortgaged property, a judgment of foreclosure and sale should order such taxes to be paid out of the proceeds of sale. Per WILLARD, C. J.

7. Mortgagees of land are not bound to give to purchasers from the mortgagor any further notice of their claim than that which the record of the mortgage gives. Per WILLARD, C. J.

8. When tenants in common make sale of land, and set apart the interest of one co-tenant in the purchase money to be applied to the credit of a bond secured by a mortgage upon such co-tenant's interest in the land, the mortgagees are not bound by such sale, nor will the court require them to acquiesce, upon proof that it was an advantageous sale, or because of the rights and interests of the other parties. Per WILLARD, C. J.

9. A mortgagee has no title to the mortgaged land, but he holds the legal title to the lien created by the mortgage. Per WILLARD, C. J.

10. Where the executor of a mortgagor advised a purchaser that a clear, unencumbered title was being conveyed, and the purchaser believing such statement, completed his purchase and erected improvements, held that the improvements were not excepted from the lien of the mortgage. Per WILLARD, C. J.

MCIVER, A. J., dissenting.^a1

Before REED, J., Charleston, May, 1877.

This was an action for a foreclosure of a mortgage, instituted by Amelia L. Annely and Julia A. Blake, as devisee and as executrix of Anna Maria Annely, against Wilmot G. De Saussure, executor of John W. Lewis, F. P. Lewis, J. W. A. Lewis, the Commercial Wharf and Cotton Press Company, and the heirs of John W. Lewis.

The case is fully stated in the report of Hon. B. G. Pressley, which, upon the matters considered by this court, is as follows:

To the Honorable Jacob P. Reed, Judge of the said Court:

By your order of March 16th, 1876, the issues of law and fact in this case were referred to me to report thereon to the court, with leave to report any special matter.

I respectfully report, that in connection with the solicitors of the plaintiffs and defendants, I have taken the testimony filed with this report, and find thereon the following facts, to wit:

On January 5th, 1859, John W. Lewis, Sr., was indebted to Amelia and Anna Maria Annely on two bonds, each in the sum of $5813, with legal interest, payable semi-annually until the whole amount be paid. These bonds were secured by mortgage of his one-fourth share of the commercial wharves in Charleston, and the whole principal and interest to be computed with semiannual rests, from January 5th, 1865, are now due and unpaid.

In October, 1865, Anna M. Annely died, leaving in full force her will, whereby she bequeathed the bond held by her to Amelia J. Lewis, Francis P. Lewis and John W. Lewis, Jr., of whom the first named, before the death of Miss Annely, had intermarried with Julius A. Blake. She was appointed and qualified as executrix of said will, and in that character is one of the plaintiffs in this case. On July 14th, 1872, Miss Amelia Annely and Mrs. Blake, executrix, placed their said bonds and mortgage in the hands of W. G. De Saussure for friendly foreclosure. He was survivor of H. A. De Saussure & Son, who, before that time, had been the legal advisers of the mortgagor and also of Miss Annely. Her letter, accompanying the delivery of the bonds and mortgage to Mr. De Saussure, simply directs him “to take charge of her interest in regard to the foreclosure of the bond in her possession, all parties consenting.” The other bond held by Mrs. Blake, executrix, was delivered to same solicitor under same instructions.

Previous to that time the said wharves had been placed for sale in the hands of L. D. De Saussure, broker. His authority was from the mortgagor and the trustees of John Fraser & Co., who then held an undivided one-half of said property. The price limited by them for the whole was $40,000, but no offer was made for it at that price. When Mr. W. G. De Saussure, as attorney of the mortgagees, applied to the mortgagor for his consent to a decree of foreclosure, he refused to give it, unless the mortgagees would first agree to release him from personal responsibility on his bonds, and look for payment only to the mortgaged property. To that all the mortgagees, except John W. Lewis, Jr., assented, and his refusal stopped the foreclosure at that time. Mrs. Blake, being daughter of the mortgagor, would not press the foreclosure against his consent, and if that were to be done, Mr. De Saussure also informed the mortgagees that they must employ some other attorney for that purpose. They did not employ any other, but stopped the suit, and left the bonds and mortgage in the hands of Mr. De Saussure, giving him no notice or indication that they did not expect him to act as their attorney, and so to represent their interests in that behalf at a future time. I therefore hold that his authority so to represent them still continued.

After this the said wharves remained for sale in the hands of L. D. De Saussure, broker, until June, 1873, at which time the share of John W. Lewis was sold and forfeited to the state for large arrears of state taxes. This suspended, for some time, the attempt to sell the wharves as a whole, and the trustees of John Fraser & Co. advertised their moiety at public sale. That was stopped by order of the United States court, which then had charge of the said trust, and which soon thereafter transferred the authority of the trustees to S. Lord, Jr., referee.

In September, 1873, John W. Lewis, Sr., died insolvent, leaving very little personal property, and mortgages on all his real estate, greatly exceeding its market value. All the said mortgages except that involved in this case, contained power to the mortgagees to sell the mortgaged property. The will of Mr. Lewis gave a like power to his executors, of whom only W. G. De Saussure qualified. In his answer he states that the other executors refused to qualify because of the manifest insolvency of the estate, and that he qualified only for the purpose of enabling him to redeem from the state the forfeiture of the Lewis' interest in said wharves and sell it under the power conferred in the will, for the benefit of the mortgagees. After so qualifying, he continued the authority of the said broker to sell the said property, and Samuel Lord, Jr., referee, also employed him for that purpose, at the same time directing him to obtain authority from the other owners, and to sell the wharves as a whole. They were then very much out of repair and produced no income, or not more than paid their current expenses. That appears by the testimony of Mr. Taft, who says that the Lelands did not receive any income on their share, and paid the taxes thereon from other sources. In this condition of the property an undivided interest in it could not have been sold for its proportionate value in the whole. For that reason, S. Lord, Jr., referee, instructed the broker to obtain authority from the other owners and sell the whole property, and in that form it was offered for sale. In so offering it the broker had no express authority from the mortgagees, except such as could be conferred by W. G. De Saussure, executor of John W. Lewis, who was also their attorney. He believed that in his character as executor he was bound to pay the state taxes as first lien on the said property, and could lawfully sell the same for that purpose, even without the consent of the mortgagees. But he also regarded himself as representing them in the said matter, using his best judgment for their interest, with their knowledge and acquiescence. The price then fixed by him and the other owners for the whole property was $40,000.

Afterwards, the gale of 1874 carried away the wharf pier-heads and otherwise so injured the said property and the docks as to make it impossible to use them, except for small vessels. Two or more parties then, or about that time, were in treaty to purchase the said property-none of them made a definite offer for it, except R. Q. Pinckney, president of the Palmetto Cotton Press Company, who offered for the whole $35,000, which, after some delay and consultation, was accepted on January 4th, 1875. On the same day the written contract was executed by the said purchaser, and by L. D. De Saussure, as broker for the vendors, who immediately thereafter ratified it by their signatures, W. G. De Saussure signing it as executor for the Lewis interest. By this contract the vendors agree to sell their respective shares of the said wharves, but the vendee only contracts for the whole; and so to...