Fretwell v. Branyon

• Decision Date: 11 July 1903
• Citation: 45 S.E. 157,67 S.C. 95
• Parties: FRETWELL v. BRANYON et al.
• Court: South Carolina Supreme Court

45 S.E. 157

67 S.C. 95

FRETWELL v. BRANYON et al.

Supreme Court of South Carolina

July 11, 1903

Appeal from Common Pleas Circuit Court of Abbeville County; Watts Judge.

Foreclosure by Joseph J. Fretwell against Davis S. Branyon, Sarah J Martin, A. T. Armstrong, and John Marion Ashley. From the decree, plaintiff appeals. Affirmed.

Wm. N Graydon, for appellant. Frank P. Gary and Wm. P. Greene, for respondents.

Statement of Facts.

GARY A. J.

This is an action for the foreclosure of a mortgage executed by D. S Branyon to M. McGee, on the 11th day of January, 1883, and assigned by McGee to the plaintiff on the 19th of April, 1886. The complaint alleges that the defendants S. J. Martin, A. T. Armstrong, and J. M. Ashley have or claim some interest in the mortgaged premises junior to that of plaintiff.

The defendants Sarah J. Martin and A. T. Armstrong set up the following defenses:

"(1) For a first defense to the alleged cause of action of the plaintiff these defendants say: That the said mortgage debt, alleged and set forth in the complaint, has been paid and satisfied in full.

(2) For a second defense to the plaintiff's alleged cause of action these defendants say: That on the 21st day of April, 1885, the defendant Davis S. Branyon was indebted to Bleckley, Brown & Fretwell, a partnership of Anderson, S. C., of which the plaintiff was a member, on mortgage debts and other debts, in the amount of $2,221.87. (3) That on the said 21st day of April, 1885, the defendant Davis S. Branyon had a fair and full statement with the said partnership of Bleckley, Brown & Fretwell, of which partnership plaintiff was a member, in which settlement the said defendant Branyon agreed to convey, and did convey, to said parties composing the partnership aforesaid, the 200 acres of land described in the complaint herein at an agreed valuation of $2,215; the said partnership accepting said conveyance in satisfaction of $1,709.32 of their said debts against defendant Branyon, and reserving thereof a sum sufficient to pay the mortgage debt of McGee, which mortgage debt is the subject of this action. That the balance of the mortgage and other debts of said Branyon to the said partnership of Bleckley, Brown & Fretwell was paid and satisfied on said 21st day of April, 1885, by a mortgage executed to them by the wife of said Branyon. (4) That thereafter the said Bleckley, Brown & Fretwell assigned to McGee the note and mortgage executed by the wife of said Branyon in exchange for the mortgage executed to the said McGee by defendant Davis S. Branyon, referred to above, and which the said Bleckley, Brown & Fretwell agreed to pay. That by virtue of the agreement above set forth the said mortgage executed by Davis S. Branyon to said McGee became extinguished and discharged. That the wife of said Branyon has since been compelled to pay to said McGee the note and mortgage executed by her to said Bleckley, Brown & Fretwell, and assigned to McGee as aforesaid.

For a further defense to the plaintiff's alleged cause of action these defendants say (after alleging the facts hereinbefore mentioned): (9) That the said Bleckley, Brown & Fretwell, instead of having the note and mortgage executed by the said Davis S. Branyon to said McGee, which mortgage is the subject of this action, marked satisfied, as they had agreed, had the same nominally assigned to J. J. Fretwell, the plaintiff herein. That notwithstanding such assignment, the consideration for same was paid by the said Bleckley, Brown & Fretwell, out of the moneys left with them by the said Branyon and wife to satisfy the same, and the said assignment was for the benefit of said Bleckley, Brown & Fretwell. (10) That the defendants herein, on 3d day of September, 1888, purchased the land described in the complaint at sheriff's sale, under judgments in their favor duly entered against Davis S. Branyon prior to 21st day of April, 1885, the date of the conveyance to Bleckley, Brown & Fretwell. That these defendants purchased the said land in satisfaction of their judgment debts, believing that the said mortgage debt of McGee had been paid, or would be paid, by the said Bleckley, Brown & Fretwell; the said Bleckley, Brown & Fretwell having represented to these defendants that they had money in their hands of said Branyon to satisfy the same. That the assignment of said mortgage debt to said J. J. Fretwell under these facts, when the consideration was furnished by Bleckley, Brown & Fretwell out of the moneys left with them by Branyon and wife for the satisfaction of the said mortgage, was a fraud upon the rights of these defendants.

For a further defense to the plaintiff's alleged cause of action these defendants say: (11) That on the 21st day of April, 1885, the said defendant Davis S. Branyon, being the owner in fee simple of the land described in the complaint, sold and conveyed to Bleckley, Brown & Fretwell, a partnership of Anderson, S. C., of which the plaintiff was a member, all his interest in said land. (12) That on the 19th day of April, 1886, when the said mortgage of McGee was assigned to said J. J. Fretwell, the said partnership, of which J. J. Fretwell was a member, having a one-third interest therein, was the owner of the legal title to said land. That the said mortgage became thereby merged into the title of the said Bleckley, Brown & Fretwell, at least to the extent of the interest of said J. J. Fretwell, which was more than sufficient to satisfy said mortgage debt."

The decree of his honor, the circuit judge, is as follows:

"This case, having at a previous term of the court been referred to the master to take the testimony, came on for a hearing before me on the pleadings and testimony so taken, at the October, 1902, term of the court. After a consideration of the testimony, and after argument of counsel, I find as matters of fact: (1) That on April 21, 1885, Davis S. Branyon, being the owner in fee simple of the tract of land described in the complaint, conveyed the same to Bleckley, Brown & Fretwell, a partnership of Anderson, S. C., of which plaintiff was a member. (2) That at the date of said conveyance S. A. McGee held the mortgage sued on in this action against the said Branyon. (3) That thereafter, on the 19th of April, 1886, the said mortgage of S. A. McGee was exchanged with the said firm of Bleckley, Brown & Fretwell for a mortgage held by the said firm against Mrs. N.C. Branyon. (4) That said exchange was made by the firm of Bleckley, Brown & Fretwell, the consideration therefor being paid by said firm, and the assignment being in fact made to them by the said S. A. McGee, although the same was nominally to J. J. Fretwell; the said exchange and assignment being sought and made by the said firm for the reason, as told to McGee, that the said firm had bought the tract of land, and did not want any lien outstanding against it. (5) I find that Bleckley, Brown & Fretwell continued to hold and have possession of the note and mortgage here sued on from the date of said assignment up to the dissolution of the firm several years afterwards; that it was never in the possession of the plaintiff until after such dissolution. (6) I find that at the time of the said assignment by McGee to Bleckley, Brown & Fretwell there was no intention on the part of said firm to hold the mortgage open to protect the title which they had to the land.

I therefore conclude as matter of law that upon the assignment of the said mortgage here sued on by McGee to Bleckley, Brown & Fretwell, nominally to J. J. Fretwell, a member of the said firm, and the mortgage being delivered to and kept by the said firm up to the dissolution, the same became merged into the fee-simple title which they had to the land at the time of the said assignment, so as to let in the claims of defendants Martin and Armstrong, who bought the land at sheriff's sale about 1890, under judgments procured against said Branyon, between the date of the execution of the said mortgage and the conveyance by said Branyon to said firm. I find that the mortgage is thereby satisfied in full. Under this finding and conclusion, I do not deem it necessary to consider the other defenses set up by the answer of these two defendants. It is therefore ordered and adjudged that the complaint herein be dismissed, with costs."

The appellant's exceptions are as follows:

"(1) Because his honor erred in his fourth finding of fact, that the consideration of the transfer of the mortgage of S. A. McGee to J. J. Fretwell was paid by Bleckley, Brown & Fretwell, and that the assignment was in fact made to them when the testimony shows that the assignment was made to J. J. Fretwell individually, and that it was originally intended for his benefit, and that he accounted for the price of said mortgage in his final settlement

with the firm. (2) Because his honor erred in holding in his fifth finding of fact that Bleckley, Brown & Fretwell continued to hold and have possession of said note and mortgage up to the time of the dissolution of said firm, and that it was never in the possession of the plaintiff, whereas, the plaintiff being a member of the firm, their possession was his possession, and the fact that the assignment was duly recorded, showing the intention of the plaintiff and of the firm that said note and mortgage was the property of the plaintiff. (3) Because his honor erred in his sixth finding of fact, 'that at the time of the said assignment by McGee to Bleckley, Brown & Fretwell there was no intention on the part of said firm to hold the mortgage open to protect the title which they had to the land'; said finding of fact being erroneous in assuming that the transfer was made to Bleckley, Brown & Fretwell, when the assignment itself shows it was made to J.

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