Dargan v. Metropolitan Properties, Inc., 18142

• Decision Date: 16 December 1963
• Docket Number: No. 18142,18142
• Citation: 133 S.E.2d 821,243 S.C. 324
• Court: South Carolina Supreme Court
• Parties: E. E. DARGAN, Respondent, v. METROPOLITAN PROPERTIES, INC., Appellant.

Page 821

133 S.E.2d 821

243 S.C. 324

E. E. DARGAN, Respondent, v. METROPOLITAN PROPERTIES, INC., Appellant.

No. 18142.

Supreme Court of South Carolina.

Dec. 16, 1963.

Long & Long, Conway, for appellant.

Ralph Hoffman, Conway, for respondent.

BUSSEY, Justice.

This action is for the foreclosure of a real estate mortgage wherein the special master to whom the case was referred recommended, and the circuit court decreed, foreclosure and sale of the mortgaged premises. The defendant mortgagor now appeals.

The facts from the record are as follows. On June 1, 1960 respondent sold to the appellant real estate located in Georgetown County containing in the aggregate 2,332 acres of land, the purchase price not being disclosed by the record. The appellant gave a note and purchase money mortgage securing the same to respondent in the sum of one hundred sixty thousand dollars, which mortgage was subordinated to one given by appellant to Metropolitan Life Insurance Company in the amount of seventy-five thousand dollars. The mortgage to respondent recited that the terms and conditions of a timber management agreement between the parties was incorporated into the mortgage as a part and parcel thereof, and the note which the mortgage was given to secure recited that it was subject to the terms of the mortgage and also to the terms of a timber management and cutting agreement between the parties. This timber contract was not offered in evidence.

Both the note and mortgage provided for payments on the principal at the rate of eight thousand dollars per annum, and for the payment of interest at the rate of six per cent per annum, payments of both principal and interest payable annually on anniversary dates. The mortgagor reserved the right to anticipate the payment of any part or all of the unpaid balance at any time, without penalty. The note contained the following provision:

'If any installment of interest is not paid at its maturity the same shall thereafter bear interest at the rate of Six (6%) per cent, per annum, until paid, and failure to pay any interest, or any installment of principal, or any portion thereof, for the space of sixty (60) days after the same become due and payable, or if default be made in the performance of, or compliance with, any of the covenants and conditions of the mortgage securing this note, then in any of said events, said principal sum with all accrued interest thereon, shall become at once due and payable at the option of the holder hereof, and be collectible without further notice.'

The mortgage reflects that, upon the real estate, there were located a main dwelling, two superintendents quarters, six tenant houses and four tobacco barns.

As of June 1, 1962, the principal balance due on the note and mortgage was the sum of $132,302.49. Exactly how payments of principal and interest prior thereto were made does not clearly appear from the record, but it does appear that at least some previous payments had been made by corporate or personal checks received and accepted by the mortgagee.

One Keith T. Jones is president and majority stockholder of the appellant corporation, he having signed the note and mortgage in his capacity as president. It appears that one M. H. Smith, a public accountant in Myrtle Beach, South Carolina, handled certain affairs for the corporation, but the extent of his authority which, incidentally, is not questioned, does not clearly appear. On May 30, 1962, respondent wrote to Mr. Smith advising him that interest due on June 1st had been computed in the amount of $8,396.05, and requested Mr. Smith to advise if the computation did not agree with his figures. Just what happened between that date and the 5th of July does not appear, but, on that date, Mrs. Ray, secretary for the respondent, wrote Mr. Smith and enclosed a sheet showing the computation of interest due since June 1st. She also, at the direction of respondent, advised him of a charge of $1.38 per day interest on interest from June 1st until paid. The statement enclosed at that time showed the amount of interest to be $8,372.49, rather than the figure first above given. It was then explained that the error was the result of the respondent or his agent having made a miscalculation of one day in figuring the interest.

On or about July 20, 1962, Mr. Jones, President of the appellant corporation, was seriously injured in an automobile accident and was confined to Ocean View Memorial Hospital from that date until the early part of August. On July 31, while Mr. Jones was still not having visitors, Mr. Smith went to the hospital about 6 o'clock, and was authorized by Mr. Jones to pay the interest due since June 1st. He thereafter returned to his office, signed a check dated July 30, 1962, in the amount of $8,372.49, payable to respondent, designated 'for interest on mortgage Metropolitan Properties, Inc.', and signed 'Nightingale Plantation, M. H. Smith.' Nightingale Plantation was apparently the name by which the mortgaged property was known. The check was for the correct amount of interest due June 1st, but did not include any sum for interest on unpaid interest. According to Mr. Smith, he deposited this check properly addressed in the United States mail about 7:30 P.M. on the evening of July 31st, but does not say whether he put it in the Post Office or in a street box. The envelope was postmarked 'Myrtle Beach, August 1, 11 A.M.' and the undisputed evidence is that it was...