Hodge v. De Laine
| Decision Date | 26 October 1926 |
| Docket Number | 12086. |
| Citation | 135 S.E. 357,137 S.C. 337 |
| Parties | HODGE v. DE LAINE. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Clarendon County; John S Wilson, Judge.
Action by E. D. Hodge, administrator, against H. C. De Laine administrator, and others. From the decree, both parties appeal. Judgment modified.
Fred Lesesne, of Manning, for plaintiff.
Charlton Du Rant, of Manning, for defendants.
This is an action to foreclose a mortgage upon real estate, executed by one John Gill, colored, as security for a note executed by him to the law firm of Purdy & O'Bryan, at Manning, S C., and assigned by them to Miss Maybin Hodge, whose money said firm had received from her for investment. The note and mortgage were dated December 3, 1912; the note was for $550, payable at a time not stated in the record for appeal, with interest from date at the rate of 8 per cent. per annum, the interest payable annually, and, if unpaid, to bear interest at the same rate as the principal, with 10 per cent. attorney's fee.
The mortgagor, John Gill, died in the year 1914, leaving as his only heir at law, an infant son, Jerome Gill, then about 4 years of age.
It is conceded that the amount due upon the note and mortgage on December 3, 1916, two years after the death of John Gill, the mortgagor, was $550. It does not appear to or by whom the payments of interest were made between the date of John Gill's death and December 3, 1916.
It appears, though not at all clearly, that, at some time after the death of John Gill, two colored women, Ella Epperson and Stella Jenkins, by some arrangement between the relative of John Gill and Mr. O'Bryan, a member of the firm of Purdy and O'Bryan, went into possession of the house and lot covered by the mortgage and undertook to pay off the mortgage, under the assumption that, when the mortgage was paid off, they would be entitled to at least a part of the property. The manual possession of the note and mortgage was retained by O'Bryan for Miss Hodge.
On May 28, 1921, Ella Epperson paid to O'Bryan $100, and he gave her a receipt stating that it was a payment "on the Gill mortgage."
On July 11, 1921, Stella Jenkins made two payments to O'Bryan, one of $40 and the other of $60, and he gave her receipts stating that the payments were "on Gill bond and mortgage." It does not appear that these two women, Ella Epperson and Stella Jenkins, are related, or that there was any community of interest between them, or that either is related to the family of John Gill, the mortgagor, or what the agreement between them and O'Bryan was. Apparently, as is stated in the argument of counsel for Stella Jenkins:
" They were trying to pay the mortgage and get in return a part of the land."
Stella Jenkins appears to have gone into possession of, at least, the house, rented it, and collected the rents up to the time the house was partially destroyed by fire and rendered unhabitable. None of these payments was turned over by O'Bryan to Miss Hodge. She died July 16, 1923, and the plaintiff qualified as administrator of her estate in September following. He secured possession of the bond and mortgage from O'Bryan and deposited them in bank, as he was required to do by the surety company which went upon his administration bond.
After this, the plaintiff went to O'Bryan for an accounting of the money which Miss Hodge had turned over to him for investment. He was told that all of it except $600, for which he was personally accountable, was in the John Gill bond and mortgage, and that not a cent had been paid upon it. He testified that he had never given O'Bryan any authority to collect any part of the Gill mortgage.
R. A. White, colored, the father of Stella Jenkins, testified that some time in January, 1924, the plaintiff came to him in reference to the Gill mortgage and told him that the matter had to be settled up; that O'Bryan was threatening to sell the property without a formal order of court; that he (Hodge) did not know of any such law, "but advised me to at once go and see Mr. O' Bryan, because if Mr. O'Bryan could not settle the matter up he would have to get another lawyer to do so"; that he (White) then went to see O'Bryan and told him that he was unable to settle the matter up; that O'Bryan later 'phoned him that Hodge was pressing him and that he would have to have some money at once; said he wanted $400; that O'Bryan then came to his (White's) office with some papers, "a mortgage of somebody's," and said that he would be prepared to "complete Stella's papers" in a day or two; that he later went to O'Bryan's office and paid him $200, for which O'Bryan gave him a receipt, dated February 26, 1924, stating that the $200 was "part payment on John Gill's house and lot bargained to Stella Jenkins, less a lot 20x100 feet reserved." This, like the payments made by Ella Epperson and Stella Jenkins, never reached the plaintiff.
In January, 1925, the plaintiff instituted this action to foreclose the John Gill mortgage. The parties defendant were De Laine, administrator of the estate of John Gill, Jerome Gill, the infant son of John Gill, Stella Jenkins, and certain other defendants, who, I assume, are lien creditors. Ella Epperson was not made a party.
Neither the pleadings nor the substance of them are set forth in the transcript of record. I gather from the circuit decree and the arguments of counsel that the defendants, Jerome Gill and Stella Jenkins, contend that the Gill mortgage should be credited with the payments above referred to, made by Ella Epperson, Stella Jenkins, and R. A. White for Stella Jenkins, aggregating $400.
The case was referred to the master, who filed a report disallowing the credits of $400 and recommending a decree of foreclosure and sale for the amount due upon the bond as of December 3, 1916, with interest as claimed, and 10 per cent. attorney's fee.
Upon exceptions to this report, his honor, Judge Wilson, by a decree dated May 9, 1925, reversed the report of the master and allowed the credits claimed. He found that the balance due upon the bond, as of May 5, 1925, including attorney's fee, was $584.81 and he signed a decree of foreclosure and sale.
From this decree, both the plaintiff and the defendants, Stella Jenkins and Jerome Gill, by guardian ad litem, have appealed. The plaintiff upon the ground of error in allowing the $400 of credits claimed, and the defendants upon the ground of error in the calculation of the circuit judge after allowing the credits, contending that the amount should have been $494.52 instead of $584.81, too much by $90.29.
It will be convenient to first dispose of the appeal of the defendants claiming that there is an error of $90.29 in the calculation of the circuit judge against them.
The terms of the note were:
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