Eld v. Eld

• Decision Date: 25 January 1922
• Docket Number: (No. 10811.)
• Citation: 110 S.E. 393
• Court: South Carolina Supreme Court
• Parties: Ex parte COCKFI ELD. MIDDLETON & CO. v. COCKFI ELD et al.

110 S.E. 393

Ex parte COCKFI ELD.MIDDLETON & CO.

v.COCKFI ELD et al.

(No. 10811.)

Supreme Court of South Carolina.

Jan. 25, 1922.

Appeal from Common Pleas Circuit Court of Williamsburg County; H. F. Rice, Judge.

Suit by Middleton & Co. against H. W. Cockfield and others, In which the named defendant filed a petition claiming to be subrogated against the plaintiff as to the proceeds of a sale of land under foreclosure. From an order dismissing the petition, such defendant appeals. Affirmed.

See, also, 113 S. C. 282, 102 S. E. 328.

The order appealed from was as follows:

This matter comes before me on a petition of H. W. Cockfield for an order directing H. U. Britton, clerk of court for said county, to pay over to the petitioner certain funds in the hands of said clerk heretofore to be paid to the plaintiffs, Middleton & Co., upon the ground that said petitioner is entitled to be subrogated pro tanto to the said funds for certain reasons set out in the petition. The facts in the case are fully disclosed by the record, and I will not burden this order with them. The Supreme Court has passed upon the issues presented in the case of Middleton & Co. v. Cockfield et al., and they determine that the default of the Farmers' & Merchants' National Bank in assigning the mortgage from H. W. Cockfield, held by said bank to S. R. Cockfield, enabled the latter to use said mortgage as collateral and obtain money or supplies from Middleton & Co., and was the cause of petitioner having to pay said mortgage to Middleton & Co. after said bank had also received payment for sale. The payment to the bank was made with part cash and a note indorsed by said S. R. Cockfield.

It is true that, since the case referred to has been decided, the petitioner has been sued by said bank on the note mentioned, and has had that to pay also, although, from what was said on agreement, I do not know as to whether the issues in that case ever went to the Supreme Court. The Supreme Court has decided in effect that Middleton & Co. are entitled to the money they claim. It seems to me that, if the petitioner had any remedy, it was against the bank whose carelessness made possible the fraud upon H. W. Cockfield, and if he has to pay the same debt twice it certainly is not the fault of Middleton & Co. I know of no principle of equity which would take the money from Middleton & Co. and give it to the petitioner. The remedy of the latter was clearly against the said bank, if he had any, and not against Middleton & Co. To grant the petition would in effect be to reverse the judgment of the Supreme Court.

The petition must be dismissed; and it is so ordered.

Arrowsmith & Muldrow, of Florence, for appellant.

Stoll & O'Bryan, of Kingstree, for respondent

COTHRAN, J. The facts of this case are quite complicated, and the difficulty of readily comprehending them is increased by the number of parties of the same name connected with the transaction. J. A. Cockfield is the father of the petitioner, H. W. Cockfield, and also of S. R. Cockfield. To render the statement of facts more readily understood we will refer to them as the father, the petitioner, and the brother.

The father was the owner of a tract of land; on January 16, 1913, he mortgaged it to Farmers' & Merchants' Bank to secure his note for $1,090.76. On November 3, 1914, the father conveyed the land to the petitioner, subject to the bank's mortgage, which the petitioner assumed. On November 3, 1914, the petitioner mortgaged the land to the brother to secure his note for $2,500, which the brother assigned to Home Fertilizer Company before maturity. On February 2, 1915, the petitioner intrusted his brother with $223.03 in cash and his note for $901.03, indorsed by the brother and another, for the purpose of taking up the note and mortgage which the father had given to the bank and which the petitioner had assumed. Instead of satisfying the note and mortgage, the bank assigned them unconditionally to the brother for the purpose of securing him and the other indorser upon their obligations as such on the note for which the note and mortgage were surrendered.

On December 31, 1915, the petitioner mortgaged the land to the brother to secure his note for $1,831.84, which was assigned by him to the bank before maturity. On February 26, 1916, the brother, claiming to be the absolute owner of the note and mortgage given by the father to the bank, and by the bank assigned to the brother to secure his indorsement of the $901.03 note, assigned said note and mortgage to Middleton & Co. as security for advances to be made him during the year 19...