First Carolinas Joint Stock Land Bank of Columbia v. Du Bose
| Decision Date | 03 July 1936 |
| Docket Number | 14325. |
| Citation | 186 S.E. 514,181 S.C. 40 |
| Parties | FIRST CAROLINAS JOINT STOCK LAND BANK OF COLUMBIA v. DU BOSE et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Darlington County; E. C Dennis, Judge.
Action by the First Carolinas Joint Stock Land Bank of Columbia against Ollie W. Windham, Fannie Windham, W. J. DuBose, and others, in which defendants Windham filed a cross-complaint against defendant DuBose. From a decree for plaintiff against named defendants, defendant DuBose appeals.
Reversed as to appellant, case remanded for entry of judgment in his favor, and affirmed in other respects.
STABLER C.J., and RAMAGE, A. A. J., dissenting.
The decree of Judge Dennis is as follows:
This is an action for the foreclosure of a mortgage of the defendant Ollie W. Windham to the plaintiff for $3,000 given to secure a note of the said Windham to the plaintiff for $3,000 bearing date November 16, 1923, with interest on the whole amount remaining from time to time unpaid at the rate of 6 per cent. per annum payable semiannually, both principal and interest being payable on an amortization plan in sixty-six semiannual installments commencing on the 1st day of November, 1924, and continuing semiannually until paid in full, the sixty-five first installments being for $105 each and the sixty-sixth for $87.56, any installment not paid when due to bear interest thereafter until paid at the rate of 8 per cent. per annum, which said note was secured by a mortgage on three tracts of land in Lamar township, in the county of Darlington and state of South Carolina, of 43, 50 and 30 acres, respectively, described in paragraph 5 of the complaint. The said mortgage providing for a reasonable attorney's fee not to exceed 10 per cent. of the amount unpaid in case of foreclosure. That on May 1, 1931, there remained due on said note and mortgage the sum of $2,743.71 with interest from May 1, 1931, at 6 per cent. per annum and 2 per cent. additional on delinquent semiannual installments. That on December 31, 1928, the defendant Ollie W. Windham sold and conveyed to his codefendant, Fannie M. Windham, the mortgaged premises, together with another tract of 40 acres for the consideration of $5 and the assumption and agreement to pay the note secured by the mortgage of Ollie W. Windham to the plaintiff and the further assumption and agreement to pay a certain mortgage indebtedness of $5,300 of the defendant Ollie W. Windham to his codefendant, W. J. DuBose. That thereafter on April 8, 1931, the defendants Ollie W. Windham and Fannie M. Windham sold and conveyed the 43-acre tract of land described in the mortgage of the defendant Ollie W. Windham to the plaintiff to their codefendant, W. J. DuBose, for the consideration expressed in the deed of $3,000, but for the real consideration as testified to by the defendants Ollie W. Windham and Fannie M. Windham, and admitted by the defendant W. J. DuBose of the assumption by the said W. J. DuBose to pay the note and mortgage of the defendant Ollie W. Windham to the plaintiff.
In his answer the defendant W. J. DuBose alleges that his codefendant, Ollie W. Windham, conveyed to him certain lands consisting of two tracts of 40 and 43 acres, respectively; that at the time that the said conveyance was made he held a second mortgage of the defendant O. W. Windham on the 43-acre tract and a first mortgage on the 40-acre tract and accepted said conveyance under a verbal agreement with Ollie W. Windham that he would receive the same in full satisfaction of the indebtedness secured by the mortgage of O. W. Windham to him, would pay the unpaid and remaining installments due and to become due on the mortgage held by the plaintiff as described in the complaint. He stated in his testimony that the defendant Ollie W. Windham became dissatisfied with the transaction and that he thereupon reconveyed the said land to his codefendant, the latter agreeing to thereafter make the payments due the plaintiff on the first mortgage and to relieve the defendant W. J. DuBose from his verbal agreement to make such payments. That he had made no agreement with the plaintiff or for its benefit and that he is therefore not liable to the plaintiff under the terms of the mortgage described in the complaint or by virtue of any assumption of liability of the indebtedness evidenced thereby and denies all of the allegations of the complaint which are in conflict with the above and asks that as to him the complaint be dismissed.
That by an amended answer thereafter filed he denied that he had made any promise to the plaintiff to answer for the debt or default of the defendants Ollie W. Windham and Fannie M. Windham, and that the alleged obligation or promise on his part to pay said debt to the plaintiff is an obligation or promise to answer for the debt or default of another and there is no writing in existence signed by him assuming said obligation and making said promise and he relies upon the applicable provisions of the statute of frauds.
The defendants Ollie W. Windham and Fannie M. Windham in their answer and cross-complaint admit the truth of all of the allegations contained in the complaint and deny all and singular the allegations of the answer of the defendant W. J. DuBose, which are in conflict with their answer and cross-complaint and allege that they adopt as a part of their cross-complaint the allegations contained in paragraphs 1 to 14, both inclusive, of the plaintiff's complaint. That when the 1931 spring payment was due to the plaintiff the defendant Fannie M. Windham was not in position to pay the same and in order to get the money to make the payment she contracted and expressly agreed with the defendant W. J. DuBose for him to make the payment due then and to assume the payment of all future installments on plaintiff's bond and mortgage and conveyed the 43-acre tract to the said W. J. DuBose in order to save the remaining part of her land consisting in the aggregate of 80 acres. That she and her codefendant, Ollie W. Windham, were unable to read or write and have not sufficient legal understanding to realize the full significance of legal transactions and when the next installment was due and the defendant W. J. DuBose tendered to Ollie W. Windham a reconveyance of the 43-acre tract of land neither the defendant Ollie W. Windham, nor Fannie M. Windham understood that they relieved the said W. J. DuBose of his obligation and express contract to pay all future installments on plaintiff's mortgage and neither of said defendants agreed to accept said reconveyance with the understanding that the defendant W. J. DuBose was to be relieved of his legal liability to pay the indebtedness secured by the plaintiff's mortgage and at said time their financial position was such that they could not have paid the installment then due or any future installments, and allege further that they are willing and desire to reconvey to the defendant DuBose the 43-acre tract of land which he had attempted to convey to them by his deed dated December 28, 1931, and that the defendant DuBose is under contract to pay the indebtedness secured by plaintiff's mortgage and should be ordered to specifically perform said contract. That if he fails or refuses to carry out the terms of said contract the defendant Fannie M. Windham will lose her two tracts of land consisting of 80 acres to her damage in the sum of $3,000.
It is admitted by all parties that the defendant O. W. Windham conveyed the mortgaged property to his codefendant, Fannie M. Windham, for the consideration of her assumption of the mortgage debt and that thereafter the defendants O. W. Windham and Fannie M. Windham conveyed the 43-acre tract of the mortgaged premises to their codefendant, W. J. DuBose, for the consideration of his assuming and agreeing to pay the mortgage debt of the defendants Ollie W. Windham and Fannie M. Windham to the plaintiff. The defendant DuBose contends that he conveyed the 43-acre tract to his codefendants, O. W. Windham and Fannie M. Windham, for the consideration of their releasing him from his assumption of the mortgage debt and agreement to pay the same and that in consideration of said conveyance they reassumed the payment of said debt. The defendant Fannie M. Windham alleges that she knew nothing about the deed from her codefendant, DuBose, to her husband and herself.
There is no dispute as to the facts as between the plaintiff and the defendants. The defendant DuBose, however, in addition to denying responsibility to his codefendants also denies that he is responsible for any part of the mortgage debt to the plaintiff upon two grounds: First, upon the ground that no part of the agreement to assume payment to the plaintiff was in writing and being a contract to answer for the debt or default of another is not binding upon him under the statute of frauds; and, second, that the contract whereby he assumed payment of said mortgage debt was made between him and his codefendants, Ollie W. Windham and Fannie M. Windham, as a part of the consideration for the conveyance of the premises which were embraced in the mortgage securing said debt, and this agreement between him and the two Windhams having been rescinded by a reconveyance of the said 43-acre tract of land to them and a reassumption of the mortgage debt on their part that he is under no obligation to the plaintiff to pay said debt.
I shall first take up and dispose of the plea of the statute of frauds. In 19 R.C. L. at page 381, § 152, under mortgages it is said: ...
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