Ham v. Ham, 16180.

• Decision Date: 07 February 1949
• Docket Number: No. 16180.,16180.
• Citation: 51 S.E.2d. 753
• Court: South Carolina Supreme Court
• Parties: HAM et al. v. FLOWERS et al. HAM v. FLOWERS et al.

51 S.E.2d. 753

HAM et al.

v.FLOWERS et al. HAM

v.FLOWERS et al.

No. 16180.

Supreme Court, of South Carolina.

Feb. 7, 1949.

Appeal from Common Pleas Circuit Court of Darlington County; J. Woodrow Lewis, Judge.

Two consolidated actions in equity by Columbus Ham and others and by S. Joseph Ham against Lula M. Flowers and others for redemption of two tracts of land from mortgage liens and accounting of rents and profits. From judgments of dismissal, plaintiffs appeal.

Reversed and remanded.

W. T. McGowan, of Timmonsville, and John L. McGowan, of Florence, for appellants.

D Carl Cook, of Hartsville, for respondent Clarence W. Flowers.

OXNER, Justice.

This appeal involves two actions in equity which are closely interrelated and, by consent of the parties, were consolidated in the Court below. Each suit was brought to redeem a tract of land from a mortgage and for an accounting of the rents and profits.

On March 31, 1920, appellant, S. Joseph Ham, for the purpose of obtaining supplies for 1920, executed and delivered to one W. Q. Flowers a mortgage for $1,000 covering 24¹/₂ acres of land. The record does not disclose the date of maturity. Apparently the supplies furnished exceeded the amount of the mortgage and during the latter part of the year the mortgagee requested additional security. Accordingly, on December 6, 1920, appellants Columbus Ham, Florrie Williams and Janie Martin, at the request of their brother, S. Joseph Ham, executed and delivered to respondent Clarence W. Flowers, a son of W. Q. Flowers, a mortgage for $1,669.49 covering 27 acres of land, which was payable in four annual installments of $417.35, each, commencing October 15, 1921. This mortgage was executed solely for the purpose of providing additional security for the payment of the entire indebtedness owed by S. Joseph Ham to W. Q. Flowers and his son, including the balance due on the mortgage executed on March 31, 1920. The last mortgage mentioned, however, was not satisfied but kept open. The mortgage for $1,669.49 was subsequently assigned by Clarence W Flowers to his father. The fact that one of these mortgages was taken in the name of the father and the other in the name of the son is of no significance. It is conceded that their business transactions were handled interchangeably and that it was immaterial in whose name an obligation was taken.

In January or February of 1921, respondent Clarence W. Flowers entered into possession of both tracts of land and has since continuously remained in possession. He and his father have collected the rents and profits but have never made any accounting to the mortgagors. Some timber has also been sold from both tracts. Appellants have paid no taxes since Flowers went into possession. According to the testimony of Florrie Williams, Columbus Ham and Janie Martin, they delivered possession to Flowers for the purpose of collecting the rents and profits and applying same on the mortgage indebtedness, with the understanding that the premises would be returned to them at the expiration of seven years. Florrie Williams further testified that she went to see Clarence W. Flowers and his father several times seeking a settlement, but was unsuccessful. She said that when she approached Clarence W. Flowers on one occasion in 1927, he claimed that "it was his land", "flewed' up", and "wouldn't give me no satisfaction." S. Joseph Ham testified that in the fall of 1920 he paid W. Q. Flowers over $300 and also delivered to him four bales of cotton to apply on the mortgage indebtedness and during the early part of 1921 turned the premises over to him "upon the condition that he keep up those buildings and work the rest of this money out of the place." According to his testimony, there was no definite understanding as to the length of time Flowers was to remain in possession. Joseph Ham further testified that he was never able to obtain an accounting from either W. Q. Flowers or his son, although he made repeated efforts to do so.

Respondent Clarence W. Flowers denied that he entered into possession of the premises under an agreement to apply the rents and profits on the mortgage indebtedness. He said that in February, 1921, after learning that S. Joseph Ham had moved fromthe premises, he took possession, without consulting appellants, "in order to protect ray investment." According to his testimony, he has since treated the premises in every way as his own and was never called upon by any of the appellants for an accounting until this action was brought. The following is taken from his testimony on cross examination:

"Q. You state you own this land, how did you get title? A. I took possession of the land. It was left there and I had money in it. I just took the legal procedure in requiring title.

"Q. Did you foreclose any of the mortgages? A. If they are not foreclosed they are in a process to be foreclosed.

"Q. You can't get title until they are foreclosed? A. All I can say is that if they are not foreclosed they are in a process of being foreclosed and the title is in a process of being gained.

"Q. You have no title? A. I have.

"Q. What is it? A. Difference of opinion, I guess.

"Q. Do you know anything about the foreclosure proceedings that were started by W. Q. Flowers against Florrie Williams and Janie Martin, February 3, 1928? A. That was stopped by them deeding their property to me.

"Mr. McGowan objects to this unless he can produce the deeds." (It is conceded that Flowers was in error in stating that the mortgagors conveyed the property to him.)

It appears that both tracts of land were sold to satisfy delinquent taxes and a deed to each tract was executed and delivered by the tax collectors of Darlington County to Clarence W. Flowers on January 10, 1927.

On February 2, 1928, a proceeding was instituted in the Court of Common Pleas for Darlington County by W. Q. Flowers against appellants Columbus Ham, Florrie Williams and Janie Martin for the purpose of foreclosing the mortgage executed by them covering the 27 acre tract of land. The prayer of the complaint was for judgment for the full amount of the principal sum with interest and for a sale of the premises to satisfy the indebted ness. About the same time, the attorneys for the plaintiff in that action gave notice of a motion for the appointment of a receiver to take charge of the mortgaged premises and collect the rents and profits. This foreclosure proceeding was never carried to a conclusion and, so far as the record discloses, is still pending. W. Q. Flowers died intestate in 1938, leaving as his sole heirs at law the respondents on this appeal.

Both of these actions were commenced in June, 1947. One was brought by S. Joseph Ham against respondents to redeem the 24¹/₂ acre tract from the lien of the $1,000 mortgage and the other by Columbus Ham, Florrie Williams and Janie Martin against respondents to redeem the 27 acre tract from the lien of the $1,669.49 mortgage. In each action respondents entered a general denial, alleged that Clarence W. Flowers was the sole owner in fee of the premises, claimed that Clarence W. Flowers had acquired title by adverse possession, and pleaded the statute of limitations.

Both cases were heard together in the Circuit Court upon testimony taken be-fore a referee. The Court found that appellants had failed to establish their contention that Flowers went into possession under an agreement to collect the rents and apply same on the mortgage indebtedness, and held that Clarence W. Flowers had acquired title by adverse possession and that both actions were barred by laches. It was accordingly adjudged that Clarence W. Flowers owned the two tracts of land and both actions were dismissed. The mortgagors have appealed. None of the respondents other than Clarence W. Flowers claim any interest in the premises. Respondent Flowers testified that his father had no interest in either of the mortgages at the time of his death. So that the controversy here is between the makers of the two mortgages and Clarence W....