Clanton v. Clanton

Decision Date16 May 1956
Docket NumberNo. 17162,17162
Citation229 S.C. 356,92 S.E.2d 878
CourtSouth Carolina Supreme Court
PartiesMary T. CLANTON, Respondent, v. J. C. CLANTON, Darlington County Bank and Trust Company, Van Metre's, Inc., South Carolina National Bank, Mrs. Cornelia D. McLeod, J. C. Clanton Auction Company, Inc., Clanton's Auto Auction Sales, Inc., Fannye M. Want, Executrix of the Estate of Samuel Want, Deceased, and James N. Moore, trading as Moore Heating & Sheet Metal Works, of whom J. C. Clanton, J. C. Clanton Auction Company, Inc., and Clanton's Auto Auction Sales, Inc., are Appellants.

LeRoy M. Want, J. P. Mozingo, III, Benny R. Greer, Darlington, Baskin & Cothran, Bishopville, for appellants.

McEachin, Townsend & Zeigler, Florence, for respondent.

MOSS, Justice.

Mary T. Clanton, the respondent herein, and J. C. Clanton, one of the appellants, were married on September 13, 1947. This action was instituted by the respondent against her husband for a divorce upon the grounds of desertion, Section 20-101(2) of the 1952 Code of Laws of South Carolina; and related relief consisting of the cancellation of a certain mortgage executed by the respondent and J. C. Clanton to Darlington County Bank & Trust Company.

It is undisputed that Mary T. Clanton and J. C. Clanton executed a mortgage to the Darlington County Bank & Trust Company on June 15, 1950, which said mortgage constituted a lien upon the individual properties of the parties, and securing an indebtedness to the said bank in the amount of $75,000, which was represented by a note of even date with the mortgage executed by J. C. Clanton and endorsed by the respondent. The proceeds of this note were deposited in the Darlington County Bank & Trust Company to the account of 'J. C. Clanton, No. B', said funds to go into a reserve account and to be controlled by the bank as security against losses that might occur through the handling of a large volume of checks in behalf of J. C. Clanton, or by whatever other trade name he used in the automobile auction business. The respondent simultaneously executed a guaranty agreement to the bank, which provided that her guaranty was not to be affected by any other security that the bank might have from J. C. Clanton and that the bank might require her to pay any loans made to J. C. Clanton without first exhausting its security. It further provided that the obligation incurred by the respondent shall be a continuing one and cover future advances. The agreement is to enure to the benefit of the bank, its successors and assigns.

As is heretofore stated, the proceeds of the loan aforesaid were deposited in 'B' account, where it remained until March 31, 1954, when J. C. Clanton drew a check thereon payable to the Darlington County Bank & Trust Company in the amount of $75,000, and on this check is the word 'note'. No other deposits were ever made to the account nor any other checks drawn thereon. In addition the ledger sheet of the bank shows this endorsement 'Assigned as security for loans'. The bank continued to hold the note and mortgage for some time and thereafter in 1955 assigned such to Clanton's Auto Auction Sales, Inc., which was chartered on November 13, 1950, and of which J. C. Clanton was the president and majority stockholder.

In the action for divorce, which was commenced on May 8, 1954, the respondent alleged the execution and delivery of the mortgage securing the indebtedness of $75,000, heretofore referred to and she asserted that such indebtedness had been incurred for the benefit of J. C. Clanton and that she was in no wise responsible therefor, and that such should be paid by the said J. C. Clanton. The appellant denies that the aforesaid note and mortgage was executed by the respondent for the benefit of said appellant and alleges that without the money from this transaction it would have been impossible to finance the repairs and improvements to the residence of the respondent at a cost of more than $80,000.

While the aforesaid action was pending, the respondent filed a petition wherein she set forth that the mortgages described in the complaint, including the one specifically referred to herein, were signed by the respondent at the instance of the appellant for the purpose of furnishing security for the appellant's operation of his auto auction sales business. She alleges in such petition that this particular mortgage was only given for the purpose of building up the reserve fund hereto referred to, and that the said note secured by the said mortgage having been paid, the mortgage should be satisfied and cancelled of record in the office of the Clerk of Court. Based upon such petition, the Honorable J. Frank Eatmon, Judge of the Third Circuit, issued a Rule requiring the appellants J. C. Clanton, J. C. Clanton Auction Company, Inc. and Clanton's Auction Sales, Inc. to show cause why the said real estate mortgage should not be satisfied of record in the office of the Clerk of Court for said County. By way of return to this Rule, the appellants allege that large sums of money were expended on the new home being constructed on the residential property of the respondent and that in order to secure the amounts advanced by Clanton's Auto Sales, Inc. for the modernization of the respondent's home, the note and mortgage above referred to were assigned to secure such advances.

It appeared, upon a hearing before Judge Eatmon, that an issue of fact was presented as to payment of the aforesaid mortgage and the facts required the taking of testimony thereabout. He states in his order that 'counsel have agreed to present testimony before me on October 17, 1955 at Chambers, in Kingstree'. At such time and place the testimony with reference to this mortgage was taken.

The appellants take the position that they were entitled to a trial by jury upon the issues presented as to whether or not the mortgage in question should be satisfied under the factual situation. The Court held in his order dated September 29, 1955, that Section 45-68 of the 1952 Code of Laws of South Carolina provided an alternate method for petitioning the court to have the mortgage satisfied of record and that such was a cumulative remedy to the procedure provided for in Section 45-67.1 to 45-67.3 of the Code. It also appears from the record that the appellants filed Notice of Intention to Appeal from this order but did not prefect such appeal, and on December 3, 1955 Judge Eatmon dismissed the appeal for the reason that no case and exceptions had been served in compliance with Circuit Court Rule 49. Hence there was no effective appeal from Judge Eatmon's Order, which fixed the trial before the Resident Judge of the Circuit without a jury.

At the hearing before Judge Eatmon, J. C. Clanton testified that the note and mortgage was given for two purposes, one of them being to start off a new phase of the business in which he was engaged, and the other to make an arrangement for the respondent to get the money for remodelling or rebuilding her house. The respondent specifically denies in her testimony that the mortgage in question had anything to do with getting money for the remodelling of her house. The trial Judge held that the purpose for which the mortgage was created having been fulfilled that it should be satisfied of record.

This case comes before this Court upon sixteen exceptions and raises the following questions: (1) Were the appellants entitled to a trial by jury of the factual issues involved? (2) Was there a valid assignment of the mortgage made by the Darlington County Bank & Trust Company to a corporation controlled by the husband of the respondent, when the mortgage had been given as an accommodation to said husband? (3) Where a mortgage covers additional advances, does repayment of the original amount borrowed with the same money that was borrowed require a satisfaction as against an assignment to the corporation that owned the money at the time the payment was made?

As to the first question, the record shows that counsel for appellants agreed to present testimony before the Trial Judge at a time and place fixed by him. Even though there was an appeal from his order requiring and fixing the place...

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2 cases
  • Parrott v. Parrott, 21712
    • United States
    • South Carolina Supreme Court
    • May 26, 1982
    ...to dependent spouse as a gift and confirmed ownership in the recipient. Caulk v. Caulk, 211 S.C. 57, 43 S.E.2d 600; Clanton v. Clanton, 229 S.C. 356, 92 S.E.2d 878; Stevens v. Stevens, 244 S.C. 113, 135 S.E.2d 725; Kirby v. Kirby, 270 S.C. 137, 241 S.E.2d 415. In Burgess v. Burgess, S.C., 2......
  • Stevens v. Stevens
    • United States
    • South Carolina Supreme Court
    • March 31, 1964
    ...600; Bates v. Bates, 213 S.C. 26, 48 S.E.2d 612; Legendre v. South Carolina Tex Commission, 215 S.C. 514, 56 S.E.2d 336; Clanton v. Clanton, 229 S.C. 356, 92 S.E.2d 878; and Green v. Green, supra, 237 S.C. 424, 117 S.E.2d 583. We find nothing to warrant interfering with the principles follo......

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