Coley v. Coley

• Decision Date: 26 April 1913
• Parties: COLEY v. COLEY.
• Court: South Carolina Supreme Court

77 S.E. 49

94 S.C. 383

COLEY v. COLEY.

Supreme Court of South Carolina

April 26, 1913

Appeal from Common Pleas Circuit Court of Charleston County; Thos S. Sease, Judge.

"To be officially reported."

W. A Holman, of Charleston, for appellant. Logan & Grace, of Charleston, for respondent

WOODS J.

The plaintiff and the defendant were married in 1892. Differences arose between them in 1903, which resulted in separation and a suit for alimony. After the allowance of temporary alimony and before the trial of the cause, the parties became reconciled and entered into the following agreement: "It is hereby mutually agreed by and between the plaintiff, Eliza Coley, and the defendant, J. M. Coley, as follows: The parties to the above case do each agree to settle the differences arising out of the above case. The plaintiff Mrs. Eliza Coley, hereby consents to forgive the past and return to the home of her husband and to resume the duties of a wife. The defendant, J. M. Coley, agrees to treat the said Eliza Coley in a kind and affectionate manner, and in every way to act as a kind husband. It is hereby further agreed between the said parties, that in the event they cannot agree, or in the event the said J. M. Coley shall illtreat the plaintiff, Eliza Coley, then and in such case the parties agree to live separate and apart, and all the property is to be sold and the plaintiff is to have her share allotted to her, to the same extent as the law would give her dower."

In 1907 the defendant, J. M. Coley, executed a mortgage on some of his property to Solomon Blank for $2,000, and on this mortgage the plaintiff renounced her dower. Afterwards, in 1910, the husband and wife again disagreed and separated, and the wife brought this action to enforce her rights under the contract. Judge Sease, who first heard the cause, held that the husband had breached the contract, and that the plaintiff, his wife, was entitled to have the property of the defendant sold and to have paid to her one-third of the net proceeds unconditionally, and he ordered a sale and the payment of one-third of the net proceeds to the plaintiff. Before the sale, Blank, the mortgagee, filed his petition asking that his mortgage be paid from the funds to be realized therefrom. The property was sold for the sum of $12,300, and a controversy as to the distribution of the proceeds arose on two points: First, was the mortgage of Blank to be paid first and one-third of the remainder paid to the plaintiff, or was the plaintiff to receive one-third of the entire proceeds of the sale, leaving the mortgage to fall entirely on the two-thirds remaining to the defendant? Second, was Blank, the mortgagee, entitled to collect for fees of his attorney 10 per cent. on the $1,800 remaining due, according to the stipulation of the mortgage that, if the property should be sold or the mortgage put into the hands of an attorney for collection, the mortgagor should be chargeable with 10 per cent. attorney's fees?

On the first issue, Judge Memminger, before whom the matter came, correctly held that the mortgage must be paid before the division between the husband and wife. The word "property" used in the contract was evidently meant in the sense of total assets; that is, the property in hand at the date of the apprehended separation, less the debts of the husband contracted in the regular conduct of his affairs. The plaintiff had assented to the charge on the property by the renunciation of her dower on the mortgage, and this is an important circumstance in favor of the finding of the circuit court.

On the second point, Judge Memminger held that the attorney for Blank was entitled to collect the full commission of $180 under the stipulation. This brings up the interesting question whether the...