Cleveland v. Bomar

• Decision Date: 03 January 1936
• Docket Number: 14198.
• Parties: CLEVELAND v. BOMAR et al.
• Court: South Carolina Supreme Court

183 S.E. 34

178 S.C. 455

CLEVELAND v. BOMAR et al.

No. 14198.

Supreme Court of South Carolina

January 3, 1936

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by Prudence M. Cleveland, as administratrix of the estate of Agnes S. Myers, against Horace L. Bomar and others. From the decree, named defendant appeals.

Reversed and complaint dismissed.

Thos B. Butler, of Spartanburg, for appellant.

J. D Andrews and R. B. Pasley, both of Spartanburg, for respondent.

STABLER Chief Justice.

This is an action for the foreclosure of a mortgage of real estate, dated September 23, 1929. It was executed by the defendant Horace L. Bomar, and was given to one H. M. Cleveland to secure a note payable one year from date thereof.

The complaint alleged that the note and mortgage, the execution of which was admitted by Bomar, had been assigned by Cleveland to Agnes S. Myers, who died in 1934, and of whose estate the plaintiff, Prudence M. Cleveland, was administratrix. On the hearing before the master, Bomar was allowed, in view of the testimony of H. M. Cleveland, to amend his answer by alleging that the action was not brought in the name of the real parties in interest and for that reason could not be maintained by the plaintiff. The master refused to dismiss the case on that ground, stating that "the note itself shows that it was assigned to Mrs. Myers." The circuit judge, on exception to the report, confirmed this finding.

While it is true that the note had been assigned to Mrs. Myers, Cleveland testified that she took, under her husband's will, only a life interest in his estate, of which the money used to purchase the note and mortgage was a part, and that after her death, as provided by the will, the estate went to his or their children named in such document. We quote here some of the testimony of H. M. Cleveland:

"Q. Mr. Cleveland, did you know when you went down to the Probate Court to get this letter of administration that Mrs. Myers owned this note and mortgage? A. Yes, I was familiar that she had a life estate in this, and that at her death it should go to her children, and I think that the will specified what children.

Q. In other words, these funds belonged to her children? A. That is correct, the proceeds of this note, and it was sought to be foreclosed for distribution.

Q. Mr. Cleveland, what was Mr. Myers' name? A. Thomas J. Myers.

Q. Was his...