Cisson v. McWhorter, 19130

• Decision Date: 24 November 1970
• Docket Number: No. 19130,19130
• Citation: 177 S.E.2d 603,255 S.C. 174
• Court: South Carolina Supreme Court
• Parties: W. W. CISSON, Respondent, v. Hoyt McWHORTER and Pickens Savings & Loan Association, of whom Pickens Savings& Loan Association alone is, Appellant.

Page 603

177 S.E.2d 603

255 S.C. 174

W. W. CISSON, Respondent, v. Hoyt McWHORTER and Pickens Savings & Loan Association, of whom Pickens Savings& Loan Association alone is, Appellant.

No. 19130.

Supreme Court of South Carolina.

Nov. 24, 1970.

Felix L. Finley, Jr., Pickens, for appellant.

W. C. Mann, Acker & Acker, Pickens, for respondent.

MOSS, Chief Justice.

W. W. Cisson, the respondent herein, instituted this action against Hoyt McWhorter, seeking to foreclose a Mechanic's Lien upon real property owned by him, the amount alleged to be due being the sum of $2,993.66.

Pickens Savings & Loan Association, the appellant herein, the holder of a duly recorded first mortgage lien on the premises, applied to the court for and was granted permission to intervene and be made a party defendant in said action. The appellant and McWhorter duly filed their answers to the petition.

The case came on for trial before the Honorable John Grimball, presiding judge, and a jury, at the 1968 October Term of the Court of Common Pleas for Pickens County. At appropriate stages of the trial, the appellant made timely motions for a nonsuit and a directed verdict in its favor and such were refused. The trial judge dismissed the appellant as a party to the action, holding that the mortgage of the Pickens Savings & Loan Association was a first lien upon the real estate of McWhorter and that any Mechanic's Lien of the respondent was subject and junior to said mortgage.

It appears that on February 2, 1967, the respondent and Hoyt McWhorter entered into a written time and waterial contract, whereby the respondent agreed to construct a dwelling for McWhorter on a lot owned by him. Pickens Savings & Loan Association agreed to and did make a loan in the amount of $10,500.00 on the McWhorter real estate. The respondent constructed the home for McWhorter with several changes being made at his request, resulting in a larger house being built than shown on the original plans. Upon the completion of the construction, McWhorter declined to pay the sum of $2,993.66 to the respondent, being the balance due under the time and material contract. The respondent duly filed a Mechanic's Lien and then instituted this foreclosure proceeding.

The complaint of the respondent specifically alleged that the Pickens Savings & Loan Association held a first mortgage on the premises and requested this his Mechanic's Lien be foreclosed and the house and lot be sold subject to said mortgage. Pickens Savings & Loan Association and McWhorter also admit that the mortgage of the appellant is a first lien upon the premises.

The record in this case discloses that the appellant never requested the foreclosure of its first mortgage. There is no contention that there has been a breach of any of the conditions or terms of the note and mortgage held by it. There is no evidence that McWhorter has defaulted in making the payment of any of his monthly installments secured by the mortgage held by the appellant. The appellant, in its answer, does not ask for any affirmative relief against the respondent or McWhorter.

The jury found a verdict for the respondent in the sum of $2,993.66. Following the verdict of the jury, the trial judge directed the foreclosure of the Mechanic's Lien and the sale of McWhorter's real estate by the clerk of the court, such to be sold subject to the first mortgage lien held by Pickens Savings & Loan Association. McWhorter has not appealed from the judgment of the trial court and such is now final...