Byrn v. Walker

• Citation: 267 S.E.2d 601,275 S.C. 83
• Decision Date: 04 June 1980
• Docket Number: No. 21245,21245
• Parties: Richard BYRN, as Executor of the Estate of Robert B. Byrn, Jr., Respondent, v. Sara Marie WALKER and Bob Capes Realty, of whom Sara Marie Walker is Appellant, and Bob Capes Realty is also a Respondent.
• Court: United States State Supreme Court of South Carolina

Page 601

267 S.E.2d 601

275 S.C. 83

Richard BYRN, as Executor of the Estate of Robert B. Byrn, Jr., Respondent, v. Sara Marie WALKER and Bob Capes Realty, of whom Sara Marie

Walker is Appellant, and Bob Capes Realty is also

a Respondent.

No. 21245.

Supreme Court of South Carolina.

June 4, 1980.

Hammond Beale, Columbia, for appellant.

Robert E. Staton, of Quinn & Smith, Columbia, for respondent Byrn.

Ronald G. Bruce, of Lewis, Lewis & Robinson, Columbia, for respondent Bob Capes Realty.

LEWIS, Chief Justice:

Respondent Byrn owned a home on Lake Murray and employed respondent Capes, a realtor, to sell it for him. Appellant purchased the property by making a substantial down payment, assuming an existing note, and giving a second mortgage to respondent Byrn. This action was instituted by Byrn, the seller, to foreclose the second mortgage. Appellant, the purchaser, claiming that the house was not as it was represented to be at the time of sale, counterclaimed against Byrn and filed a cross-complaint against respondent Capes, the selling agent for Byrn, for damages for breach of contract and fraud based upon alleged false representations concerning the condition of the heating system, the retaining walls, the swimming pool, the water system within the house, and the structural stability of the house. The trial judge entered judgment in favor of respondent Byrn for the foreclosure of the mortgage and denied appellant any relief on her counterclaim against Byrn, the seller, or her cross-complaint against Capes, the selling agent. The purchaser (appellant) has appealed from that judgment.

The action was tried in the lower court before the trial judge without a jury, by consent. The parties disagree, however, over whether the issues were tried in equity or law; and, therefore disagree at the outset as to the scope of our review on appeal.

The plaintiff's (respondent's) action was brought to foreclose a real estate mortgage, which is in equity, with legal actions interposed defensively by way of counterclaim and cross-complaint. Under Collier v. Green, 244 S.C. 367, 137 S.E.2d 277, the action is to be tried as an equitable action, since the defenses and counterclaims affect the validity of the lien and the amount due, and arise out of the transaction in which the mortgage was created.

Therefore, since the issues are equitable and were tried by the judge without a reference, this Court may review the evidence and make factual findings in accordance with its own view of the evidence. Townes Associates, Ltd. v. The City of Greenville, 266 S.C. 81, 221 S.E.2d 773. The only issues now before us on appeal are those arising under the lower court's findings with reference to appellant's claim for damages under her counterclaim and cross-complaint.

Appellant bases her claims for damages against the respondents largely upon alleged false representations made by respondent Capes in the sale of the property. While various claims were litigated in the lower court, appellant now relies basically upon the charges that respondent Capes, as the agent of respondent Byrn, the seller, made false representations to her at the time of the sale regarding the heating system, the retaining walls around the house, the swimming pool, the quality of the water system within the house, and the structural stability of the house. We think the record abundantly sustains the charges that respondent Capes fraudulently misrepresented the condition of the property in these particulars, as an inducement for the purchase of the house; and that the trial judge erred in denying recovery by appellant against the respondents.

We initially focus our attention on the evidence. Appellant testified that the agent of respondent Capes indicated to her that the realtor had sold the house on a previous occasion and was therefore well-acquainted with its intricacies. On her visits to the house prior to purchase, she discussed the heating system with respondent Capes and was told by the agent that the house had heating in the form of electric coils embedded in the concrete floor, with the heat in each room controlled by thermostats on the walls. In making the representations about the heating system, the agent turned the thermostat dial which clicked as if it were working. It was learned after purchase that the house did not have a concrete floor and that the thermostats were to operate baseboard heaters installed by the original builders, but had been removed by the present seller, respondent Byrn.

After filing a complaint against Capes with the Real Estate Commission, the appellant subsequently agreed to withdraw the complaint on the condition that Capes furnish satisfactory heat. The complaint was withdrawn and appellant thereafter installed a heat pump system, but the agent refused to pay the cost above that of the least expensive system available.

Appellant was told by the selling agent that cracks in the porch and wall were due to initial settling of the house, and that the building was structurally sound. After purchase, it was discovered that the house was in a highly unsafe condition and would eventually collapse, due to improper construction.

The house is surrounded on three sides by water and retaining walls had been constructed to hold the land intact. Inquiry was made by appellant as to the condition of these retaining walls and she was assured that they were in good condition. At the time of purchase, a thorough inspection of the wall was not possible because of the water level. After the purchase, the waters receded and the retaining wall was found to be leaning badly. There was testimony that the walls were improperly constructed.

During an inspection of the house, the appellant observed a "bright, blue aqua-ish type stain" around the bathroom sink drain....