Heath v. Haile

• Decision Date: 06 March 1896
• Parties: HEATH et al. v. HAILE.
• Court: South Carolina Supreme Court

24 S.E. 300

45 S.C. 642

HEATH et al. v. HAILE.

Supreme Court of South Carolina

March 6, 1896

Appeal from common pleas circuit court of Richland county; Earle Judge.

Action by James M. Heath and another, partners as Heath, Springs & Co., against Joseph E. W. Haile. Judgment for plaintiffs. Defendant appeals. Affirmed.

The complaint and the grounds of appeal were as follows:

Complaint.

"The plaintiffs above named, complaining of the above-named defendant, respectfully show to the court:

"(1) That on the 30th day of January, 1888, one R. W. Draffin since deceased, for value received, made and delivered to O. Pierce Heath, Eli B. Springs, Leroy Springs, and James M. Heath, partners then trading in copartnership under the firm name of Heath, Springs & Co., his certain promissory note, bearing date on that day, whereby he promised to pay to the said Heath, Springs & Co., under their said firm name, on or before the 1st of October, 1888, the sum of seven thousand dollars, with interest after maturity at the rate of ten per centum per annum, and that on the same day for the better securing the payment of the said note and the money to become due thereon according to the terms thereof, the said R. W. Draffin executed and delivered to the said Heath, Springs & Co., above-named, his deed, and thereby conveyed, by way of mortgage under his hand and seal, to the said O. Pierce Heath, Eli B. Springs, Leroy Springs, and James M. Heath, partners under the firm name of Heath, Springs & Co. as aforesaid, their heirs and assigns, amongst other lands, the following described tract of land, to wit: 'All my [R. W. Draffin's] right title, and interest, being the one-half thereof, in and to all that piece, parcel, or tract of land containing one hundred and sixty acres, more or less, lying and being in the county of Lancaster and state of South Carolina, bounded on the south by lands of C. A. Welsh, on the west by lands of Folsom, on the north by lands of Hilton, and on the east by estate lands of Trusdale.'

"(2) That on the 8th day of February, 1888, the said mortgage was duly recorded in the office of the register of mesne conveyances in and for the said county of Lancaster, in Real-Estate Mortgage Book No. 3, pp. 543 and 544.

"(3) That no part of the money due upon the said mortgage debt has been paid, except the sum of two hundred and seventy-one and 4/100 dollars, paid on the 19th day of November, 1888; ten hundred and twenty-five dollars on the 10th day of December, 1888; and seventeen hundred and forty-five and 11/100 dollars on the 20th day of May, 1893; and except the sums of one hundred and seventeen and 50/100 dollars on the 16th day of June, 1894, the proceeds of the sale of certain personal property also mortgaged to secure the said note; all of which personal property, as far as the same could be found, was regularly sold after due advertisement as required by law, and netted the said sum; and that the balance of the said mortgage debt still remains due and unpaid, except that the proceeds of the sale of the said mortgaged property, which was sold as hereinafter stated, is to be applied to the same, leaving a balance still due on the said mortgage debt as is hereinafter stated.

"(4) That since the execution of the said note and mortgage, and prior to the commencement of the action hereinafter mentioned, the said former firm of Heath, Springs & Co. was dissolved by the withdrawal of the said Eli B. Springs and O. Pierce Heath, and that prior to the commencement of the action hereinafter mentioned the said Eli B. Springs and O. Pierce Heath assigned and transferred their interest in the said note and mortgage to these plaintiffs, who are partners trading in copartnership under the firm name of Heath, Springs & Co., and that these plaintiffs, under their firm name aforesaid, are now the true owners and holders of the said note and mortgage, and of the indebtedness due thereon, and were such owners and holders at the time of the bringing of the action hereinafter mentioned, and from that time to the time of the commencement of this action.

"(5) That on the ___ day of July, 1893, the said R. W. Draffin died intestate, leaving as his heirs at law Anna Draffin, his widow, and Robert Lee Draffin, Willie Draffin, and Selina Draffin, his children; that no administration upon the estate of the said deceased has been had, and that he left no unincumbered personal estate to be administered; that the estate of the said R. W. Draffin is insolvent; and that there is now no property belonging to the estate of the said deceased out of which the mortgage debt to these plaintiffs, or the balance due thereon as hereinafter stated, can be paid.

"(6) That the tract of one hundred and sixty acres, more or less, the undivided half interest in which was mortgaged to these plaintiffs, as set forth in the first paragraph of this complaint, was on the 31st day of August, 1888, partitioned between the owners of the other undivided interest and the said R. W. Draffin, and that there was allotted to the said R. W. Draffin, in severalty, amongst other lots, the following lot, being part of the said one hundred and sixty acre tract, and covered by the said mortgage by the said R. W. Draffin to these plaintiffs; that is to say, all that certain lot, piece, or parcel of land lying and being in the town of Kershaw, in the county of Lancaster and state of South Carolina, bounded north by lands then belonging to the said R. W. Draffin, but afterwards conveyed by him to the said Joseph E. W. Haile; east by Hampton street, in the said town; south by Richland street, in said town; and west by lands of the Charleston, Cincinnati & Chicago Railroad; being two hundred feet by one hundred feet.

"(7) That thereafter, on the 4th day of July, 1891, the said R. W. Draffin conveyed to the defendant Joseph E. W. Haile, the said lot of land last above described, subject to the mortgage aforesaid to these plaintiffs.

"(8) That on or about the 30th day of October, 1893, an action was commenced in the court of common pleas in and for the said county and state, wherein these plaintiffs were the plaintiffs, and the said heirs at law of R. W. Draffin and the said Joseph E. W. Haile and others were defendants, for the foreclosure of the said mortgage against the land described in the first paragraph of this complaint, including the lot of land described in the sixth paragraph of this complaint, and that the summons and complaint in the said action were thereupon, on or about the day named, served upon the said defendants, and that the said defendant, Joseph E W. Haile, appeared in the said action, and made answer to the said complaint. That in the said action for foreclosure the said defendant, Joseph E. W. Haile, by way of answer verified by his own affidavit, and by way of exceptions to the report of the referee taken by his attorney in said action, W. D. Trantham, Esq., admitted that the said mortgage was a lien upon the said lot of land, but alleged, amongst other things, that he was entitled to receive from the proceeds of the sale of the said lot, when the same should be sold under the foreclosure of the said mortgage, the value of the improvements alleged to have been made upon the said premises by him by the erection on the same of the buildings hereinafter mentioned; that thereupon such proceedings were had in the said cause as that a decree was duly made therein by the said court on the 5th day of November, 1894, overruling all the defenses and exceptions taken by the said defendant, Joseph E. W. Haile, adjudging that the amount due upon the said mortgage debt to the said plaintiffs was the sum of seven thousand eighty-five and 82/100 dollars, with interest at the rate of ten per centum per annum from the 21st day of September, 1894, and decreeing a sale of the said mortgaged premises, including the lot of land described in the 6th paragraph of this complaint, and directing the application of the proceeds of said sale, after paying the costs and expenses of the same, and the taxes on the said lands for the year 1894, and the costs and disbursements of the plaintiffs in the said action, towards the payment of the mortgage debt aforesaid due to the said plaintiffs; that in compliance with the said decree the said mortgaged premises, including the lot of land described in the sixth paragraph of this complaint, were duly advertised for sale, and sold on the 3d day of December, 1894; and that the net proceeds of the sale thereof, after paying the said costs and expenses of sale, and the taxes and the costs and disbursements of the plaintiffs in the said action, amounted to the sum of five thousand one hundred and eighty-seven and 6/100 dollars, which amount being applied towards the payment of the mortgage debt due the plaintiffs left a balance still due thereon on the 3d day of December, 1894, of the sum of two thousand and thirty-four...