Davis v. Sparks, 17596

Citation235 S.C. 326,111 S.E.2d 545
Decision Date16 December 1959
Docket NumberNo. 17596,17596
CourtUnited States State Supreme Court of South Carolina
PartiesA. F. DAVIS, Respondent, v. Etta Thompson SPARKS, Appellant.

Hayes & Hayes, Nolen L. Brunson, Rock Hill, for appellant.

Roddey & Sumwalt, Rock Hill, for respondent.

STUKES, Chief Justice.

This is an action for the foreclosure of a mortgage of real estate in which the mortgagor, now appellant, contests the amount due. She purchased the property from the mortgagee, now respondent, and the mortgage was given to secure the payment of the credit portion of the purchase price.

Respondent had listed the property for sale with a real estate broker, Williams, for $5,750, which included the latter's commission. Another broker, named Lake, found the appellant-purchaser and shared in the commission. At the time of the transaction, in October 1948, appellant agreed to make a down payment of $1,500 and she and respondent executed a contract of purchase and sale, dated October 2, 1948; both brokers also joined in the execution of the contract.

It recited the consideration of $5,750, acknowledged receipt thereon of $200 and obligated appellant to pay $1,300 additional with note and mortgage for the balance of $4,250 payable $35 per month on the first to the tenth of November 1948, and like installments of the same amount between the same dates of each succeeding month until principal and interest be fully paid, with interest at the rate of six per cent per annum, the monthly payments to be applied first to interest and remainder on principal. The other provisions of the contract are of no present relevance.

Later, respondent's deed to the premises dated Oct. 30, 1948, was executed and delivered to appellant at the time of the closing of the transaction, which she has ever since retained. It recited consideration of $5,750. Contemporaneously and of even date appellant executed her promissory note to respondent whereby she promised to pay $4,250 with interest thereon at six per cent per annum from date, payable in monthly installments of $35 on the 30th day of each month, beginning November 30, 1948, and until said principal and interest should be paid in full, and the monthly payments should be first applied to interest, then principal. The accompanying mortgage bearing the same date recited the amount and terms of the note, quoting from the mortgage, '$4250., with interest thereon at six per cent per annum from date on the whole amount of said principal remaining unpaid from time to time.' The note and mortgage, after recordation, were left by respondent with a bank to which appellant regularly made the monthly payments until she fell behind when sick during recent years and finally discontinued payments about a year before this action of foreclosure was commenced.

The complaint was usual in form for foreclosure without deficiency judgment, which was expressly waived by respondent. The unpaid indebtedness was alleged to be $2,791.88 with some additional, accrued interest. The prayer was for judgment establishing the indebtedness, including ten per cent attorney's fee, as provided in the note and mortgage, that the latter be foreclosed, the equity of redemption barred, the premises sold under the direction of the court, etc. The answer admitted the execution of the sales contract, note and mortgage but alleged an antecedent oral contract whereby the broker, Williams, and respondent agreed that the sales price would be $4,000 and that the amount of $5750. included, quoting from the answer, '$1750. interest for about eight years and that there would be no more interest charges'; and that she executed the instruments in reliance upon that representation by the broker, Williams, and by respondent, which were, quoting again, 'mistakes on their part or were part of a fraudulent scheme to deceive' appellant. Reformation of the instruments was prayed by way of counterclaim, but appellant joined in the prayer of the complaint for foreclosure of the mortgage, as reformed, and sale of the property under the direction of the court. Respondent made reply to the counterclaim by which the allegations of it were denied. In the reply laches and estoppel were also set up against the alleged right to reform the three written instruments. (We are not concerned with the latter because, independent of them, the referee and the court concurred in finding that the instruments represented the true agreement of the parties, which we affirm.) The case was referred to a special referee who took the evidence and made his report to the court.

Respondent and an official of the collecting bank testified in support of the allegations of the complaint and established the amount of the mortgage indebtedness. The note and mortgage were admitted in evidence without objection.

The appellant's son, who was about twenty years old at the time of the transaction, testified that he went with his mother to inspect the property before she purchased it. Mr. Lake took them and there they met the respondent. The respondent priced the property at $4,000 and agreed to a cash payment of $1,500, the balance to be paid at $35 per month, which was the agreement of the parties. Mr. Williams was not present on that occasion. Appellant paid $200 to Lake or respondent. The witness also accompanied appellant to Mr. Williams' office where she made the additional cash payment of $1,300 and executed the contract. When Williams read it to appellant she would not sign until he assured her that the amount was $5,750 because it included all interest on the indebtedness. This was in reply to appellant's contention that the price of the property was $4,000. Appellant testified, in contradiction of her son, that Williams was present on their visit to inspect the property when Lake offered it to her for $4,000 to which respondent, who was present, agreed. Appellant and her son also disagreed as to whether respondent was present when she signed the contract in Williams' office; she said he was, he that he was not. This is unimportant except to point out discrepancies in their testimony, which are natural because the events were ten years in the past. Her testimony as to her conversation with Williams at his office, when she went to make the additional cash payments of $1,300 and execute the contract, was substantially the same as that of her son, i. e., that Williams explained the amount of $5,750 by saying that it included all of the interest which she would have to pay. She is literate and can read with her glasses.

Another witness for appellant was a Mrs. Dill, who was waiting in Mr. Williams' office when appellant executed the contract of purchase and sale, and signed as one of the witnesses to it. She said that there was argument between appellant and the broker before the contract was signed, but the witness knew nothing of the nature of the argument.

The broker, Williams, testified in behalf of respondent in reply and denied any argument or reluctance on the part of appellant to sign the contract, which he read and explained to her before she willingly executed it. He also testified to the listing of the property with him by respondent for sale at $5,750, upon which amount he charged and collected his commission. The following is an extract from his testimony:

'Q. At any time did she tell you to your knowledge, sir, that she intended to buy the property for $4000? A. No, sir.

'Q. Now, you heard her testify that you told her that $1750.00 was interest already added in, is that true? A. I couldn't have figured it out that way.

'Q. Have you ever sold a contract like that, sir, in the entire time you have been in the real estate business? A. ...

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15 cases
  • State v. Charping
    • United States
    • United States State Supreme Court of South Carolina
    • November 23, 1998
    ...accessible to the accused, or under his control, whose testimony would substantiate his story).2 However, in Davis v. Sparks, 235 S.C. 326, 333, 111 S.E.2d 545, 549 (1959), we recognized the general rule that "a party is not to be prejudiced by his failure to call a witness who is equally a......
  • In re Gonzalez
    • United States
    • United States State Supreme Court of South Carolina
    • September 3, 2014
    ...be inferred that such testimony, if presented, would be adverse to the party who fails to call the witness. See, e.g., Davis v. Sparks, 235 S.C. 326, 111 S.E.2d 545 (1959). The rule is often referred to by the courts as the “missing witness rule,” the “absent witness rule,” or the “empty ch......
  • State v. Hammond, 20635
    • United States
    • United States State Supreme Court of South Carolina
    • March 13, 1978
    ...most unusual circumstances, clearly within the purview of the principles quoted from Davis v. Sparks, . . . ." In Davis v. Sparks, 235 S.C. 326, 111 S.E.2d 545 (1959), we "Inference from the unexplained failure of a party to call an available witness that the testimony of such witness would......
  • In re Care and Treatment of Way
    • United States
    • Court of Appeals of South Carolina
    • June 8, 2011
    ...... him, or within some degree of control of said party.". Davis v. Sparks, 235 S.C. 326, 333, 111 S.E.2d 545,. 549 (1959). Further, "in the absence of ......
  • Request a trial to view additional results

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