James v. Martin

Citation147 S.E. 752,150 S.C. 75
Decision Date04 April 1929
Docket Number12629.
PartiesJAMES v. MARTIN et al.
CourtUnited States State Supreme Court of South Carolina

Appeal from Common Pleas Circuit Court of Clarendon County; J. Henry Johnson, Judge.

Action by J. E. James against Norman Martin and others. Judgment for defendants and plaintiff appeals. Affirmed.

The report of Special Referee J. Ingram Wilson is as follows:

"After holding a reference in this cause on May 24, 1927, for the purpose of hearing testimony, a report of which testimony is hereto attached, with exhibits and pleadings, as a part of this report, I did, at request of all counsel, hold the record open for a period of ten days in order for them to file with me written arguments and their briefs of authorities upon which they relied to sustain their respective contentions.
"Plaintiff alleges that the defendant Norman Martin gave him a note secured by a chattel mortgage on September 10, 1920, that the amount of indebtedness was reduced by certain payments and that judgment for the balance was obtained on March 27 1926, as will appear from judgment roll 6416, the amount being $362.82; that on January 23, 1926, Norman Martin conveyed all of his real estate to his mother, Lillie R Martin; that said conveyance was without valid consideration and made while Norman Martin was indebted to plaintiff and while Lillie R. Martin knew of said indebtedness; that said conveyance was fraudulent and was knowingly made for the purpose of preventing the collection of plaintiff's claim against Norman Martin; that the other two named defendants claimed some interest in the land conveyed. Plaintiff asks the court to declare the conveyance to be null and void, and cancel it of record; that the interest of the said Norman Martin be sold to satisfy his indebtedness to plaintiff.
"The defendants Norman Martin and Lillie R. Martin, in their answer, admit that Norman Martin, with some of his brothers and sisters, did, on or about January 23, 1927, convey to Lillie R. Martin, their mother, their interests in certain lands; that said conveyance was not made without valid consideration, and was not made with fraudulent intent; that Frank O. Martin died about March 20, 1925, intestate, possessed in fee of the lands described in the complaint, leaving as his heirs at law his widow, Lillie R. Martin, and his nine children, including the defendant Norman Martin; that at his death Ida Levi held a mortgage on the land, on which was due $11,483, with interest at 8 per cent. from January 15, 1925; that subsequent to the death of the intestate the mortgagee demanded payment; that the defendant Lillie R. Martin had qualified as admininistratrix of the intestate estate, and found that nothing could be derived from the personal estate to pay on the mortgage debt, as the proceeds were not sufficient to take care of current debts of the intestate; that, in consideration of love and affection, and in order to prevent a foreclosure of the mortgage set out above, Norman Martin and his eight brothers and sisters conveyed to their mother all their interests in the lands described, so that she could refinance the loan, Lillie R. Martin assuming and agreeing to pay the debt owing to Ida Levi; that Lillie R. Martin did obtain from the Federal Land Bank a loan of $12,000, the proceeds of which were applied to the Levi debt, but were insufficient to pay the same; that Lillie R. Martin did, in order to discharge the lien of the Levi mortgage upon the lands in question, execute to the mortgagee a chattel mortgage securing the unpaid balance of the mortgage debt, amounting to $600, as a additional defense that Norman Martin owes no real estate, and owned no other at the time of conveyance than his interest in his father's estate lands; that he is a man with a dependent family, and entitled to homestead exemption, and that the interest that he had conveyed to his mother was less than the exemption he was entitled to under the law; and that, regardless of the intent or purpose of either party to the conveyance attacked, the plaintiff has not been defrauded or in any wise wronged or damaged by said conveyance.

" The defendant the Federal Land Bank of Columbia, answering, alleges: For a first defense, that it owns a mortgage on the lands in question, said mortgage recorded in Book 12, p. 225, office clerk of court for Clarendon county. For a second defense, that the conveyance of Norman Martin to his mother was for a valid consideration, and that plaintiff cannot maintain his action until he has exhausted all legal remedies against debtor, which plaintiff has not done. For a third defense, that Norman Martin is entitled to homestead, which amounts to more than his interest in the lands is worth. For a fourth defense that the answering defendant is holder, as purchaser for value without notice, of a $12,000 mortgage upon the land in question, given by Lillie R. Martin, the owner of the legal title to the lands, in consideration of a loan in the amount of $12,000 made to her. For a fifth defense, that the answering defendant is subrogated to the rights of Ida Levi, having loaned Lillie R. Martin $12,000 for the purpose of retiring the Levi mortgage.

"There is filed herewith a demurrer of plaintiff to defendant's answer, with an order thereon. I hardly deem it necessary to report on said demurrer, inasmuch as my findings of fact and conclusions of law on the issues arising out of the pleadings do, in effect, dispose of the demurrer.

"The plaintiff, J. E. James, testified that the judgment referred to in the complaint was based upon the balance due him on a purchase of an Overland automobile, said purchase price being secured by a chattel mortgage on the said Overland car; that he had made no effort to collect the judgment; and that he did not know if execution had been issued to the sheriff.

"The judge of probate of Clarendon county, J. F. Dickson, Esq., was sworn as a witness for the defense, and had with him certain records of his office, which records were placed in evidence. He stated that the records showed that Lillie R. Martin, as administratrix, had reported a receipt and disbursement in connection with the estate of F. O. Martin of $5,873.43, and that her reports to his Court showed that of that amount she had contributed $725.67.

"Mrs. Lillie R. Martin testified that the amount appearing in her report as having been paid by her was from her personal money; that it was necessary for her to use her own funds, and give a chattel mortgage in order to pay interest charges on the Levi mortgage, pay the debts of the estate other than that, and secure to Mrs. Levi a balance still unpaid even after devoting the proceeds of the Land Bank loan to retire the Levi mortgage; that, when advised to apply to the Land Bank for the loan, she found it necessary to have a conveyance to her of all the undivided interests of her children; that she did procure such conveyance, one daughter who was in China having a deed forwarded to her for execution; that the Land Bank loan was for the purpose of paying Ida Levi; that all of the proceeds were devoted to that purpose; and that she (Lillie R. Martin) had given a chattel mortgage for $600, which chattel mortgage she has since paid.

"The defendant Norman Martin testified that his conveyance of his interest in the lands was made so that his mother could refinance the loan which Ida Levi was calling; that he is now and was at the time of his conveyance the head of the family of dependents; that he had no intent to defraud plaintiff; that plaintiff had made no effort to take the automobile covered by the chattel mortgage; that the land of his father's estate was worth about $40 per acre.

"Mr. A. J. Plowden was called as a witness by Fred Lesesne, Esq., counsel for Norman Martin and Lillie R. Martin. Before testifying, J. J. Cantey, Esq., attorney for plaintiff, objected to any evidence on the question of homestead exemption, 'for the reason that the testimony and the records show that judgment in this case is founded on a debt which was contracted previous to the death of F. O. Martin, and that if the defendant, Norma Martin, has any homestead interest in the land at all he could not plead it as a matter of law against a debt which he contracted previous to his acquiring his land or homestead interest.' This objection. I respectfully report, is not sustained. In the brief of authorities which Mr. Cantey has filed with me, and which is hereto attached, he sets out citations on this point, which I deem unnecessary to discuss in this report. Mr. Plowden then testified that he knew the lands in question, and that they were worth $50 an acre.

"Mr. C. N. Sprott testified that he knew the Martin lands, and that, in his opinion, Mr. Plowden's estimate of the value was correct.

"Moses H. Levi, Esq., testified that he attended to the business affairs of his mother, Mrs. Ida Levi, and that he had, according to the books he kept, received a payment of $11,293.20 from Mrs. Martin on October 4, 1926; that this money came from the Land Bank loan, he understood, as he had seen the check from the Land Bank; that this lacked $600 of settling the amount due on Mrs. Levi's mortgage, but the mortgagee had accepted a note for the $600, secured by cotton of Mrs. Martin, and had then satisfied the mortgage and delivered the canceled instrument to Mrs. Martin.

"Fred Lesesne, Esq., testified that he acted as Mrs. Martin's attorney in securing the loan from the Federal Land Bank that the loan was procured for the purpose of retiring Mrs. Ida Levi's mortgage; that he made the abstract of title for the Land Bank, and that the only judgment he found of record against Norman Martin was one amounting to about $173, that Mrs. Martin paid this...

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  • Matrix Financial Serv. Corp. v. Frazer, 26859
    • United States
    • United States State Supreme Court of South Carolina
    • August 16, 2010
    ...mortgage which require the satisfaction of the first mortgage as a condition of the giving of the second. Id.; see alsoJames v. Martin, 150 S.C. 75, 147 S.E. 752 (1929) (applying Enterprise Bank and quoting: One satisfying a lien note at the request of the property owner, upon the understan......

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