Collier v. Green, No. 18231

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMOSS; TAYLOR
Citation137 S.E.2d 277,244 S.C. 367
PartiesG. Delores COLLIER, Respondent, v. Ralph T. GREEN, Appellant.
Docket NumberNo. 18231
Decision Date25 June 1964

Page 277

137 S.E.2d 277
244 S.C. 367
G. Delores COLLIER, Respondent,
v.
Ralph T. GREEN, Appellant.
No. 18231.
Supreme Court of South Carolina.
June 25, 1964.

Page 278

[244 S.C. 368] Smith & Drawdy, Columbia, for appellant.

James D. Walters, Columbia, for respondent.

MOSS, Justice.

Ralph T. Green, the appellant herein, admits that on August 30, 1958, he made, executed and delivered to C. W. Cheeks his promissory note, whereby he promised to pay the principal sum of $3,200.00 in stated monthly installments. He further admits that in order to secure the payment of the aforesaid note, that he made, executed and delivered to C. W. Cheeks a real estate mortgage securing the payment of the aforesaid note and creating a lien upon a parcel or lot of land located near the City of Columbia, in the County or richland, South Carolina.

G. Delores Collier, the respondent herein, commenced this action on August 24, 1962, for the purpose of foreclosing the aforesaid mortgage, alleging that he was the owner and holder of said note and real estate mortgage and that the same had been duly assigned to him by C. W. Cheeks on [244 S.C. 369] November 10, 1960. It is then alleged that the terms and conditions of the said note and mortgage had been breached and that

Page 279

the respondent, the owner and holder of said note and mortgage, had declared the entire mortgage debt due and payable. It is further alleged that the mortgage herein was being foreclosed subject to a first mortgage lien.

The appellant answered the complaint, within twenty days after the service thereof, admitting the execution and delivery of the aforesaid note and mortgage and set up by way of an affirmative defense (1) that the respondent in this action was not the real party in interest; (2) that the respondent has no actual interest or ownership in said note and mortgage; and (3) that the said assignment of the note and mortgage to the respondent was made solely for the purpose of cutting off any defenses which the appellant had against C. W. Cheeks, the real owner of said note and mortgage. It is further alleged in the answer that there are certain moneys due on the said promissory note to the said C. W. Cheeks and that the appellant has a defense in whole and in part to any action brought upon the said note and mortgage against him by the said Cheeks.

Subsequent to the filing of the aforesaid answer by the appellant he made a motion for an order allowing him to amend his answer so as to file a cross complaint against Cheeks. This motion was denied by the trial Judge upon the ground that the appellant had no right to file a cross complaint against Cheeks, in the present action, for the reason that Cheeks was not a party to said action. There was no appeal from this order.

The respondent, by motion dated January 13, 1964, moved for an order referring all issues of law and fact in this case to the Master in Equity for Richland County. The appellant resisted the motion on the ground that his defenses to the foreclosure of the mortgage should be tried by a jury. By order, dated February 5, 1964, the motion of the respondent was granted upon the ground that an action for the foreclosure[244 S.C. 370] of a real estate mortgage is an equitable one and the defenses of the appellant to such cause of action could properly be tried and determined by the Master. Timely notice of intention to appeal from such order was given by the appellant.

The appellant asserts that the trial Judge erred in granting a general order of reference in violation of his right to a trial by jury upon the issue as to whether the respondent was the real party in interest. He asserts that this question of fact should have been submitted to a jury for determination and the motion for an order of reference should have been refused.

Section 10-207 of the Code provides that every action must be prosecuted in the name of the real party in interest, with the exceptions therein stated which are not here applicable. This rule has been applied to actions for the foreclosure of a real estate mortgage. Cleveland v. Bomar, 178 S.C. 455, 183 S.E. 34.

An action for the foreclosure of a real estate mortgage is one in equity. Carsten v. Wilson, 241 S.C. 516, 129 S.E.2d 431.

Section 10-1402 of the...

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26 practice notes
  • Vinson v. Hartley, No. 2572
    • United States
    • Court of Appeals of South Carolina
    • October 14, 1996
    ...sole judge of issues of fact, including the issue of damages. Id. at 416-17, n. 7, 433 S.E.2d at 901, n. 7. See, e.g., Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 (1964); Gwathmey v. Foor Hotel Co., 121 S.C. 237, 113 S.E. 688 (1922). The Court in Johnson To permit the court to "correct" ......
  • Parker v. Shecut, No. 3167.
    • United States
    • Court of Appeals of South Carolina
    • May 22, 2000
    ...divide the remaining proceeds. LAW/ANALYSIS Standard of Review An action for specific performance lies in equity. Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 (1964). Additionally, partition actions and accountings are also equitable in nature. Wilson v. McGuire, 320 S.C. 137, 463 S.E.2d ......
  • Shaw v. Atlantic Coast Life Ins. Co., No. 2488
    • United States
    • Court of Appeals of South Carolina
    • January 9, 1996
    ...damages. Therefore, it is an action at law triable before a jury under South Carolina law. S.C. CONST. art. I, § 14; Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 Accordingly, the decision of the trial judge is AFFIRMED. SHAW, and GOOLSBY, JJ., concur. --------------- 1 This approach has b......
  • Lewis v. Premium Inv. Corp., No. 25510.
    • United States
    • United States State Supreme Court of South Carolina
    • August 5, 2002
    ...Purchaser paid $75.00 as a down payment. Monthly payments were $75.00. 2. The parties agree this is an action in equity. Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 (1964) (specific performance lies in equity); Wilder Corp. v. Wilke, 324 S.C. 570, 479 S.E.2d 510 (Ct.App.1996) (actions fo......
  • Request a trial to view additional results
26 cases
  • Vinson v. Hartley, No. 2572
    • United States
    • Court of Appeals of South Carolina
    • October 14, 1996
    ...sole judge of issues of fact, including the issue of damages. Id. at 416-17, n. 7, 433 S.E.2d at 901, n. 7. See, e.g., Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 (1964); Gwathmey v. Foor Hotel Co., 121 S.C. 237, 113 S.E. 688 (1922). The Court in Johnson To permit the court to "correct" ......
  • Parker v. Shecut, No. 3167.
    • United States
    • Court of Appeals of South Carolina
    • May 22, 2000
    ...divide the remaining proceeds. LAW/ANALYSIS Standard of Review An action for specific performance lies in equity. Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 (1964). Additionally, partition actions and accountings are also equitable in nature. Wilson v. McGuire, 320 S.C. 137, 463 S.E.2d ......
  • Shaw v. Atlantic Coast Life Ins. Co., No. 2488
    • United States
    • Court of Appeals of South Carolina
    • January 9, 1996
    ...damages. Therefore, it is an action at law triable before a jury under South Carolina law. S.C. CONST. art. I, § 14; Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 Accordingly, the decision of the trial judge is AFFIRMED. SHAW, and GOOLSBY, JJ., concur. --------------- 1 This approach has b......
  • Lewis v. Premium Inv. Corp., No. 25510.
    • United States
    • United States State Supreme Court of South Carolina
    • August 5, 2002
    ...Purchaser paid $75.00 as a down payment. Monthly payments were $75.00. 2. The parties agree this is an action in equity. Collier v. Green, 244 S.C. 367, 137 S.E.2d 277 (1964) (specific performance lies in equity); Wilder Corp. v. Wilke, 324 S.C. 570, 479 S.E.2d 510 (Ct.App.1996) (actions fo......
  • Request a trial to view additional results

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