Bryan v. Southern Realty and Const. Co., Inc., 21851

• Citation: 299 S.E.2d 482,278 S.C. 549
• Decision Date: 10 January 1983
• Docket Number: No. 21851,21851
• Court: United States State Supreme Court of South Carolina
• Parties: William J. BRYAN, also known as William J. Bryan, Jr., and Audrey L. Bryan Brandon, Respondents-Appellants, v. SOUTHERN REALTY AND CONSTRUCTION COMPANY, INC., Farmers and Merchants Bank, Leroy Gruber, Evelyn Gruber, J.B. Rhodes, Betty S. Rhodes, John H. Peurifoy, Frances A. Peurifoy, Keith M. Kinard, Martha Sue Kinard, Oscar Craven, South Carolina Tax Commission and South Carolina Employment Security Commission, Defendants, of whom Southern Realty and Construction Company, Inc., Farmers and Merchants Bank, Leroy Gruber, Evelyn Gruber, J.B. Rhodes, Betty S. Rhodes, John H. Peurifoy, Frances A. Peurifoy, Keith M. Kinard, Martha Sue Kinard, Oscar Craven are Appellants-Respondents.

Page 482

299 S.E.2d 482

278 S.C. 549

William J. BRYAN, also known as William J. Bryan, Jr., and Audrey L. Bryan Brandon, Respondents-Appellants, v. SOUTHERN REALTY AND CONSTRUCTION COMPANY, INC., Farmers and Merchants Bank, Leroy Gruber, Evelyn Gruber, J.B. Rhodes Betty S. Rhodes, John H. Peurifoy, Frances A. Peurifoy Keith M. Kinard, Martha Sue Kinard, Oscar Craven, South Carolina Tax Commission and South Carolina Employment Security Commission, Defendants of whom Southern Realty and Construction Company, Inc Farmers and Merchants Bank, Leroy Gruber, Evelyn Gruber, J.B. Rhodes, Betty S. Rhodes, John H. Peurifoy, Frances A. Peurifoy, Keith M. Kinard, Martha Sue Kinard, Oscar Craven are Appellants-Respondents.

No. 21851.

Supreme Court of South Carolina.

Jan. 10, 1983.

Hammer & Bernstein, Columbia; and Thomas M. Howell, Jr., Walterboro, for appellants-respondents.

Smoak & Smoak, Walterboro, for respondents-appellants.

HARWELL, Justice:

Bryan and Brandon initiated this foreclosure action to collect a debt owed them by Southern Realty and Construction Company. Bryan and Brandon appealed the master's recommendation that the complaint be dismissed to the circuit court. The circuit court adopted the master's findings of fact but reversed her conclusions of law and held that Southern was in default and that Bryan and Brandon were entitled to relief. We reverse the circuit court.

The Colleton County property involved here is known as the Palmetto Estates Subdivision. William J. Bryan owned approximately 60% of the property, and his sister, Audrey L. Bryan Brandon, owned the other 40%. Farmers and Merchants Bank had a mortgage on about 65 acres of Bryan's property. Subsequently, Farmers released from the lien several, but not all, of the lots as Bryan made payments on his loan.

On May 19, 1976, Bryan and Brandon sold Southern the land known as Palmetto Estates Subdivision for $192,150.00. In exchange, Southern executed a promissory note for the debt and secured it by mortgaging the land. The non-interest bearing promissory note stated the debt was "payable in installments dependent upon the sale of lots." It further stated that the agreement was for a fifteen year period, that Southern would release a minimum of ten lots annually and no more than twenty-five percent of the whole tract per year, and that an attorney's fee of twenty percent plus all costs and expenses would be added to the $192,150.00 if legal proceedings were necessary.

On August 6, 1976, Southern sold Gruber, Rhodes, Peurifoy, and Kinard fifteen lots each. In exchange, they each paid Southern $5.00. On the same day, Gruber, Rhodes, Peurifoy, and Kinard respectively conveyed to Farmers his fifteen lots by way of a mortgage. In exchange, Farmers paid each of them $16,200.00. The same day Southern paid Bryan and Brandon $12,500.00 for ten lots; consequently, Bryan and Brandon released ten lots from their lien. Thereafter, on February 18, 1977, Southern conveyed to Craven, by way of mortgage, a portion of the Palmetto Estates Subdivision.

On May 18, 1978 Southern's president asked for an extension of ninety days to pay $12,500.00, by May 19, 1978, the date it considered to be its next due date. In exchange, Southern offered to pay interest on the $12,500.00, during the ninety days, Bryan agreed to consult his sister, Brandon, who was the co-mortgagee, concerning the extension. On May 25, 1978, Bryan and Brandon's attorney notified Southern's president that the extension was denied. Consequently, Southern's president offered a check for $12,500.00, which Bryan and Brandon refused. Instead, they declared Southern had breached the terms of the note and demanded payment in full.

In an action in equity, tried first by the master or a special referee and concurred in by the judge, the findings of fact will not be disturbed on appeal unless found to be without evidentiary support or against the clear preponderance of the evidence. Townes Assoc., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976). Here, although the circuit court judge disagreed with the master's conclusions of law, he concurred in her findings of fact. We conclude the findings of fact are supported by the evidence.

Both the master and the circuit court concluded that Southern's promissory note was unambiguous. The pertinent portions of the note state:

FOR VALUE RECEIVED, It, Southern...