Carsten v. Wilson

• Decision Date: 29 January 1963
• Docket Number: No. 18019,18019
• Citation: 241 S.C. 516,129 S.E.2d 431
• Court: South Carolina Supreme Court
• Parties: C. G. CARSTEN, Respondent, v. Willie WILSON, J. T. Floyd, L. R. Laird, and Ray Truluck and C. Harry Truluck, doing business under the firm name and style of Truluck Brothers, of whom Willie Wilson is, Appellant.

Page 431

129 S.E.2d 431

241 S.C. 516

C. G. CARSTEN, Respondent, v. Willie WILSON, J. T. Floyd, L. R. Laird, and Ray Truluck and C. Harry Truluck, doing business under the firm

name and style of Truluck Brothers, of

whom Willie Wilson is, Appellant.

No. 18019.

Supreme Court of South Carolina.

Jan. 29, 1963.

Frank E. Cain, Jr., Bennettsville, for appellant.

Shuler & Harrell, Kingstree, for respondent.

MOSS, Justice.

This is an action to foreclose a real estate mortgage executed and delivered by one Arrington Wilson to C. G. Carsten, the respondent herein. The mortgage, dated December 1, 1954, was given to secure the payment of an indebtedness represented by a bond in the amount of $14,156.00, which said bond was due on December 1, 1957. The mortgage constituted a lien upon a tract of land containing one hundred and eighty-seven acres owned by the said Arrington Wilson.

It is admitted that on August 27, 1957, Arrington Wilson conveyed the mortgaged premises to his son, Willie Wilson, the appellant herein. The complaint alleges that by this deed the appellant agreed to assume the payment of the debt secured by the aforesaid mortgage.

The allegations of the complaint are the usual ones found in an action for the foreclosure of a real estate mortgage. The appellant by answer, sets up (1) a general denial; (2) 'that said Arrington Wilson was illiterate and unable to understand the nature and effect of any written instrument, and was unable to sign his name to same, except by mark'; (3) a specific denial that Arrington Wilson was indebted to the respondent in any amount whatsoever; and (4) that the mortgage sought to be foreclosed was without consideration and constituted a cloud on the appellant's title to the land in question.

The respondent moved before the Honorable James Hugh McFaddin, Resident Judge of the Third Circuit, for an Order of Reference and for the appointment of a receiver for the mortgaged premises. Thereafter, on March 10, 1962, Judge McFaddin issued a general Order of Reference appointing the Honorable Phillip C. Stoll, as Special Referee, to hear and determine all issues made by the pleadings and to report the same to the Court. The motion for the appointment of a receiver was denied. Pursuant to the Order of Reference, the Special Referee convened a hearing on April 5, 1962, at which time the testimony was taken. Thereafter, the said Special Referee did, on April 21, 1962, file his report in the office of the Clerk of Court for Williamsburg County, and due notice of such filing was given to the attorneys for the appellant. The Special Referee found that the mortgage sought to be foreclosed was executed by Arrington Wilson to the respondent, who issued his check in the exact amount of the debt secured by the mortgage, and this fund was properly disbursed for the benefit of the said Arrington Wilson by Shuler and Harrell, Attorneys at Law of Kingstree, South Carolina. The Special Referee further found that there was no failure of consideration and that the mortgage was executed to secure the payment of the indebtedness represented by the bond, and foreclosure was recommended because of default in the payment of the indebtedness secured by the said mortgage. The Special Referee also found that the said Arrington Wilson was mentally competent at the time he executed the said bond and mortgage to the respondent.

It further appears that no exceptions were filed by the appellant to the Report of the said Special Referee, even though such was filed in the office of the Clerk of Court for Williamsburg County on April 21, 1962, and due notice of such filing was given to his attorneys. The record also shows that on May 9, 1962, that the attorneys for the respondent gave due and timely notice to the attorneys for the appellant that they would move on May 15, 1962, before the Honorable James Hugh McFaddin, for an Order approving the Report of the Special Referee and for a decree of foreclosure and sale of the premises involved in this action. Judge McFaddin did, on May 15, 1962, issue a decree of foreclosure and sale in which he ratified, approved and confirmed the findings made by the Special Referee. Neither the appellant nor his attorneys appeared, as required by the aforesaid notice, to object or contest the granting of the decree of foreclosure and sale. Pursuant to the aforesaid decree, the mortgaged premises, after due advertisement, were sold at public auction on June 4, 1962.

The appellant, prior to the sale of the premises under the foreclosure decree, did, on May 31, 1962, give notice of intention to appeal to this Court from the decree of foreclosure and sale. Thereafter, on June 15, 1962, the appellant filed a motion to invalidate the sale of the mortgaged premises made pursuant to the decree of foreclosure on the ground that the respondent failed to post bond as required by Section 7-412 of the 1952 Code of Laws, as amended. The appellant contended before the Trial Judge that since he had given notice of intention to appeal to this Court, prior to the sale of the premises under the decree of foreclosure, such notice stayed the sale unless the respondent posted a bond pursuant to Section 7-412 of the Code, as amended. The Trial Judge denied such motion as made by the appellant and refused to set aside the sale of the mortgaged premises. It is from the decree of foreclosure and the order denying the aforesaid motion that the appellant has prosecuted this appeal.

The appellant has filed five exceptions to the decree of foreclosure and sale, each of which charges the Trial Judge with error in...