First Nat. Bank of Holly Hill v. Hair

• Decision Date: 01 May 1942
• Docket Number: 15401.
• Citation: 20 S.E.2d 219,200 S.C. 36
• Parties: FIRST NAT. BANK OF HOLLY HILL et al. v. HAIR et al.
• Court: South Carolina Supreme Court

20 S.E.2d 219

200 S.C. 36

FIRST NAT. BANK OF HOLLY HILL et al. v. HAIR et al.

No. 15401.

Supreme Court of South Carolina

May 1, 1942

Felder & Rosen and T. B. Bryant, all of Orangeburg, for appellant.

Walker Walker & Jenkins, of Summerville, and James A. Moss, of Orangeburg, for respondents.

BONHAM Chief Justice.

This action involves a mortgage upon a certain tract of land in Orangeburg County, executed by Edgar D. Sasportas to the Edisto National Bank of Orangeburg, South Carolina, dated April 9, 1918, and duly recorded on April 12, 1918, securing a note of the same date as the mortgage in the principal sum of $1,083, maturing one year after date. In due course the mortgage and note were acquired by assignment by the appellant herein.

The original complaint in this action alleged that the said E. D Sasportas has died, leaving as his heirs the following nieces and nephews, all of whom are named as parties defendant Addie Sasportas, Bennie Sasportas, Willie Sasportas, Edgar Sasportas, Mrs. F. A. Blythewood and E. S. Bulkley. In addition to the foregoing nieces and nephews who, in the sixth paragraph of the complaint are alleged to be the heirs of E. D. Sasportas, the following are also named parties defendant to the action: Erienne S. Hair, Jenny Sasportas, H Benjamin and Virgil P. Kizer.

The plaintiff alleged that various payments have been made on the note and mortgage, thus reducing the amount due thereon to $959, with interest from November 1, 1931, which (as was later found as a matter of fact by the Special Referee) was the date of the last payment, the plaintiff alleging that it acquired the instruments by assignment on April 20, 1935.

The defendant, Erienne S. Hair, was made a party defendant because, as is alleged, she "has or claims to have some interest in the said real estate." Benjamin and Kizer were named as defendants because it is alleged that they "have gone on the said real estate and have cut the timber therefrom and should be made to account unto the plaintiff herein for any and all damages that they have done to the property herein described and which is covered by plaintiff's mortgage." The prayer of the complaint is for judgment against Kizer and Benjamin in the sum of $5,000; for judgment on the principal amount due on the note, with interest from November 1, 1931, together with attorney's fees thereon; that the mortgage be foreclosed, the equity of redemption barred, the mortgaged premises ordered to be sold and from proceeds of such sale that plaintiff's judgment debt be paid and for such other and further relief as may appear equitable and proper, and for the costs of the action.

The original summons and complaint were lodged in the office of the Sheriff of Orangeburg County on April 7, 1939, and it appears from testimony in the case, to which there was no contrary finding by the Special Referee or by the Circuit Decree, that copies of the summons and complaint were, at the same time, filed in that office for the purpose of service. On the same day, notice of pendency of the action was filed in the office of the Clerk of Court for Orangeburg County.

To this complaint two demurrers were filed. The defendants Benjamin and Kizer demurred jointly on the grounds that a cause of action based on contract for the foreclosure of a mortgage, as against other defendants, was improperly joined in the same action with a cause of action against Benjamin and Kizer for the tort of trespass by cutting and removing timber from the land. This demurrer alleges:

"That it appears from the face of the complaint that the cause of action for the cutting of the timber will not accrue against the defendants affected thereby, unless the land at the foreclosure sale fails to bring enough to satisfy the mortgage, and there is no allegation in the complaint that the land will not do this."

The second demurrer, filed by the defendants Erienne S. Hair and Addie Sasportas, is also based on the sole ground that the complaint unites a cause of action for the foreclosure of a mortgage of the real estate therein described against certain parties having an interest in the property, and a cause of action in tort against certain other defendants for damages to the mortgaged premises.

The two demurrers, both of which were based on the sole ground that an action in trespass was improperly joined with an action for foreclosure, were heard by the Honorable M. M. Mann, Presiding Judge, who, on August 29, 1939, passed an order holding that these two separate causes of action are stated in the same complaint, and that no judgment that might be rendered could affect alike all the parties, and that for that reason the objection to the presence of the cause of action against Benjamin and Kizer must be sustained. The order concludes thus:

"The cause of action against the remaining defendants for the foreclosure of the note and mortgage should not be disturbed and the ends of justice will be served by allowing the action thus amended to proceed.

"Ordered, Therefore, That the demurrers are sustained in so far as the improper and irrelevant presence of the defendants Benjamin and Kizer is concerned and their names are stricken as parties defendant; and the Plaintiff have leave to amend its complaint, if it so desire, in such particulars as it may desire, within five days from the filing of this Order; and that the defendants have twenty-five days from the filing of this Order to answer or plead as they may be advised."

From the foregoing order no appeal was taken.

In accordance with the terms of the order, the plaintiff, on the following day, amended its complaint by omitting therefrom all allegations and prayers pertaining to Virgil P. Kizer and H. Benjamin. In all other respects the original and the amended complaints are identical, except that in the sixth paragraph of the amended complaint the name of Jennie Sasportas is added to the list of heirs of E. D. Sasportas, her name not having appeared in the similar paragraph of the original complaint. The amended complaint, as set out in the transcript of record, does not indicate whom the suit is against except in the sixth paragraph, and in the prayer. There is no caption and no record of service upon any one, but in the sixth paragraph of the amended complaint all parties are named who appeared in the original caption, except Benjamin and Kizer.

On September 19, 1939 (three weeks after Judge Mann had passed upon the sole question raised by the demurrer), the first and only answers in this entire proceeding were filed. The two answers were filed separately by Adelaide D. Sasportas and Erienne Hare Young, who had been styled in the complaint as Erienne S. Hair. No other answers were filed.

The answer of Adelaide D. Sasportas set up a general denial; a plea of the statute of limitations, alleging that the lien of plaintiff's mortgage had expired, in that the foreclosure action had not been commenced within twenty years from the date of maturity of the mortgage; that the note sued upon had been reduced to the status of an unsecured obligation and barred by the statute of limitations; that the lien of plaintiff's mortgage had become divested by reason of a sale of the property for taxes, and that her title to said property was therefore clear of the mortgage lien. Later, at the hearing of the cause, Adelaide D. Sasportas applied for and obtained leave to amend this answer so as to allege that any attack on the tax title through which she acquired the said property, was barred by the two-year statute of limitations.

The answer of Erienne Hare Young alleges, in effect, a general denial, denies that she has any interest in the real estate described in the complaint, and alleges: "*** that the premises described in the said complaint were conveyed to her by C. H. Williams, Collector of Delinquent Taxes of Orangeburg County, by deed dated the twenty-seventh day of May, 1936, and recorded in the office of the Clerk of Court for Orangeburg County in Deed Book 105, page 78 for a consideration of One Thousand Eight Hundred Eighty-Five and 25/100 Dollars ($1,885.25), and that subsequently she, for valuable consideration, conveyed the same to her co-defendant, Adelaide D. Sasportas, by deed dated the -- day of July, A.D., 1938; ***."

The answer of Adelaide D. Sasportas contained an allegation similar to the one just quoted, and also made the following allegation on the subject: "That the property described in the amended complaint herein, was by virtue of certain tax executions, issued against the Estate of E. D. Sasportas, sold by C. H. Williams, collector of delinquent taxes for Orangeburg County, to satisfy said executions, at public auction on the eighth day of May, 1934, and at said sale the said premises were bid in by her co-defendant, Erienne S. Hair."

The answer also admits that E. D. Sasportas is dead, and that his heirs are those persons named in paragraph six of the amended complaint, but Adelaide D. Sasportas, in her answer, does not allege any interest in the property as a result of being an heir or devisee of E. D. Sasportas, but alleges that she holds title to the property, free of the lien of the mortgage, as a result of a conveyance to her, for valuable consideration, from Erienne S. Hair, after the above described tax sale.

At the hearing before the Honorable John S. Bowman, County Judge, as Special Referee, P. L. Felder, Jr., of counsel for plaintiff, testified in part:

"On that day, April 7, 1939, I took the complaint with the copies and with the notice of the pendency of action and carried it to the office of the Clerk, filed the notice of pendency of action and had the Clerk endorse a certificate on the summons showing such filing and then took the...