Atlantic Joint Stock Land Bank of Raleigh v. Latta

• Decision Date: 12 January 1932
• Docket Number: 13324.
• Citation: 162 S.E. 68,164 S.C. 56
• Parties: ATLANTIC JOINT STOCK LAND BANK OF RALEIGH v. LATTA et al.
• Court: South Carolina Supreme Court

162 S.E. 68

164 S.C. 56

ATLANTIC JOINT STOCK LAND BANK OF RALEIGH v. LATTA et al.

No. 13324.

Supreme Court of South Carolina

January 12, 1932

Appeal from Common Pleas Circuit Court of Darlington County; E. C Dennis, Judge.

Action by the Atlantic Joint Stock Land Bank of Raleigh against Sue Early Latta and others, wherein defendants, except named defendant, set up a counterclaim. From an order sustaining a demurrer to the counterclaim, the counterclaiming defendants appeal.

Affirmed.

Preston B. Thames, of Florence, for appellants.

Samuel Want, of Darlington, for respondent.

BLEASE C.J.

The plaintiff instituted this action for the foreclosure of a real estate mortgage in the court of common pleas for Darlington county. The defendant, Sue Early Latta, is the mortgagor. After the execution of the mortgage, she subdivided the mortgaged premises among her children, parties defendant, and made conveyances to them of several tracts.

The plaintiff alleged that the original mortgage debt was $22,000, and, at the time of the institution of the suit that the sum due was $17,859.92, exclusive of interest and other items. The plaintiff alleged defaults under the terms of the mortgage at the time of the commencement of the action in the nonpayment of two mortgage installments due, respectively, on November 1, 1930, and May 1, 1931, each in the sum of $954.36; in the nonpayment of taxes and drainage assessments for the years 1928, 1929, and 1930 amounting to $4,000; and the nonpayment of an insurance premium, which plaintiff was required to pay.

Under the terms of the mortgage, as alleged in the complaint, the mortgagor assigned and transferred to the mortgagee all the rents and income from the mortgaged premises for each and every year any installment of the mortgage note remained unpaid, together with all rights and remedies for enforcing collection of the same; and that upon institution of a suit for foreclosure the mortgagee should be entitled to have a receiver appointed to take charge of the mortgaged premises, together with all rents, etc., and to hold the same subject to the orders of the court.

The mortgagor and her grantees, who are the appellants here, answered the complaint, but made little denial of the material allegations contained therein. Those defendants set up a special defense and also a counterclaim; the two being in practically identical terms.

The counterclaim was set out at great length. It is unnecessary to quote all its language. Therein the counterclaiming defendants alleged that the plaintiff had damaged them in the sum of $50,000, in that the plaintiff had breached a contract extending time for the payment of the mortgage debt. We take from the argument of the appellants their summary as to the allegations of the counterclaim.

"The counterclaim attempts to outline in detail the several negotiations with respondent's (plaintiff's) officers and field representative, which led up to and resulted as appellants (defendants) allege, in a contract based upon a legal consideration, to extend time for payment of the past due items of the mortgage debt. The gist of the counterclaim is as follows:

" That on January 20, 1931, respondent (plaintiff) advised appellant (defendant) that 'it will be agreeable with us for you and Mr. Hawkins (respondent's field agent) to continue to work out this situation for Mrs. Early'; that thereupon appellants (defendants) through their attorney, rented out as much of the premises as possible for $5.00 per acre, receiving contracts aggregating approximately $1500.00, waiving rent for each tenant, except one, to the extent of $200, in consideration of which (contracts) an extension of said mortgage was granted within which to sell said premises; that Hawkins brought to appellant's (defendant's) counsel, C. E. Byrd to handle the sales and in his presence a tentative agreement was made for Byrd to sell the land and that subsequently Hawkins returned to appellant's (defendant's) counsel with Byrd and a definite arrangement to carry through sales was made with Byrd, in pursuance of which Byrd embarked upon his duties in connection therewith; that respondent (plaintiff) retarded Byrd's efforts to sell and without notice placed the mortgage for foreclosure; that appellant's (de

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