Land v. Reese

Decision Date06 April 1926
Docket Number11949.
Citation134 S.E. 252,136 S.C. 267
PartiesLAND v. REESE et al.
CourtSouth Carolina Supreme Court

On Petition for Rehearing August 17, 1926.

Appeal from Common Pleas Circuit Court of Richland County; R. W Memminger, Judge.

Action by J. S. Land against Isaac Reese and others, as trustees of the Union Baptist Church of Columbia, and another. Decree for defendants, and plaintiff appeals. Affirmed.

Cothran J., and R. O. Purdy, A. A. J., dissenting.

J. C Townsend, master for Richland county, submitted the following report:

"(1) pursuant to the order of reference set out in the attached testimony, I held references herein, attended by the attorneys of record, took the testimony offered, which is herewith reported, and therefrom find and conclude as hereinafter set forth.
"(2) I find that the plaintiff, J. S. Land, did, on or about the 7th day of July, 1919, deliver his check, dated on said date, payable to the order of Barron, McKay, Frierson & Moffatt, in the sum of $3,000, for the purpose of a loan which was subsequently made, and now constitutes the subject-matter of this action.
"(3) I further find that, pursuant to resolution made and passed by the constitute authorities of the Union Baptist Church of Columbia, S. C., passed at a regular monthly meeting on the 13th day of June, 1919, to borrow the sum of $3,000, and to secure the payment thereof by bond and mortgage covering the premises situate on Divine street between Assembly and Gates streets, in the city of Columbia all of which said description of said premises more fully appear in the pleadings in this action.
"(4) I further find that, pursuant to resolution, Charles Smith, Sam Smith, Dallas Robinson, and Joseph Wilson, made, executed, and delivered, as trustees, their certain bond or obligation, conditioned for the payment, 'Unto the above-named, J. S. Land, his certain attorneys, executors, administrators, or assigns, the full and just sum of three thousand ($3,000.00) dollars, three years after the date thereof, with interest thereon from date and until paid in full, at the rate of eight (8%) per cent. per annum, payable semiannually on the 1st days of January and July of each and every year, and in default of the payment of any installment of interest, the entire amount of said principal indebtedness, together with interest thereon, shall at the option of the mortgagee, become immediately due and payable."
"(5) I further find that, in order to better secure the payment of said bond according to the terms and conditions thereof, and pursuant to said resolution, the parties executing said bond executed and delivered their certain mortgage, and by way thereof did convey unto J. S. Land, his heirs and assigns, the parcel of land more fully set forth and described in said mortgage, which said mortgage was filed for record, and the same was duly recorded in the office of the clerk of court for Richland county in Mortgage Book CX at page 312.
"(6) I further find that said bond, together with the mortgage, at the time of the execution, or immediately thereafter, was delivered to some one for and on behalf of the law firm of Barron, McKay, Frierson & Moffatt.
"(7) I further find that said bond is without date, and so is the mortgage, but in the recitation clause of the mortgage it is stated that said bond is dated the 3d day of July, 1919, and that said mortgage is even without date of its probate, but was filed for record on the 5th day of July, 1919.
"(8) I further find that, after the execution and delivery of said bond and mortgage, the amount therein stipulated was paid out by the firm of Barron, McKay, Frierson & Moffatt, in installments, and of dates, together with other charges against said fund, according to the following statement:

"Loan, J. S. Land to Union Baptist Church of Columbia, S.C.

Amount of Loan $3,000 00
Disbursements.
Attorney's fees 1919 ................ $ 60 00
July 5, by check ....................... 500 00
July 17, recording mortgage .............. 4 00
Revenue stamp on bond .................... 1 50
By check ............................... 500 00
July 25, by check ...................... 500 00
August 2, by check ..................... 500 00
August 8, by check ..................... 500 00
August 16, by check .................... 150 00
August 17, check to balance ............ 284 50
---------------- --------------
$3,000 00 $3,000 00
"Columbia, S. C., December 23, 1919.
"(9) I further find that the interest on account of said loan was paid by the makers thereof or some one for and on behalf of the Union Baptist Church of Columbia, unto the firm of Barron, McKay, Frierson & Moffatt, or to said firm as the name thereof might have been changed from time to time, at all times, however, headed by Barron.
"(10) I further find that on the 4th day of October, 1920, the sum of $1,000 was paid to the firm of Barron, McKay, Frierson & McCants, on account of the principal due on account of said bond and mortgage, and that on the 21st day of June, 1922, the sum of $700 was paid to the firm of Barron, Frierson, McCants & Elliott, on account of loan of the Union Baptist Church of Columbia, from J. S. Land.
"(11) I further find that interest was paid on said loan pursuant to notices addressed to Union Baptist Church of Columbia, signed by the firm of Barron, McKay, etc., among other things in words as follows: 'Interest amounting to one hundred sixteen ($116.00) dollars, on your loan No. 398, from J. S. Land, will be due on January 1, 1920, please send check payable to our order to cover.' Reference is had to Exhibits J, K, L, etc.
"(12) I further find that interest was paid by Union Baptist Church of Columbia on the balance of said loan, after giving credit for the payments made, up to the 1st day of July, 1922, and that interest on the full amount of the loan, to wit, $3,000, was remitted to the plaintiff, J. S. Land, by the firm of Barron, McKay, etc., up to the 1st day of July, 1922.
"(13) I further find that J. S. Land claims the full amount of said bond and mortgage, to wit, $3,000, together with interest from the 1st day of July, 1922, and attorney's fees, is now due thereon, and that the defendant Union Baptist Church of Columbia claims that there is only due the sum of $1,300 principal, with interest thereon from the 1st day of July, 1922; the controversy being over the two payments made on account of the principal, to wit, $1,000 October 4, 1920, and $700 on June 21, 1922.
"(14) I further find that, soon after the execution and delivery of the bond and the recording of the mortgage, the same, together with the policy of insurance, was forwarded to J. S. Land, and he retained the possession thereof until the institution of this action.
"(15) I find that Barron's firm were general attorneys for J. S. Land for the purpose of making loans for the plaintiff, but that no specific authority was delegated by the plaintiff, J. S. Land, to said attorneys to even collect the interest, and at no time was any authority given by J. S. Land for said firm to collect the principal of the loan in question or any other loans made by said firm on behalf of the plaintiff. I find also that no authority was given to change the terms of the contract contained in the bond and mortgage to accept any part before maturity, and that any collections so made were without authority either expressed or implied in so far as the same specifically relates to any collections on the bond and mortgage, the subject of this action.
"(16) I report as a matter of law that any payments on account of the principal of the bond and mortgage in question to an alleged agent is made at the peril of the payer; that the bond and mortgage executed directly to J. S. Land; that it was the duty of the makers thereof to make payments to him unless specifically authorized by J. S. Land to make payments to some third person. Mars v. Mars, 27 S.C. 134, 3 S.E. 60.
"(17) I further report that the defendants should not have made any payments on account of the principal of said bond and mortgage, especially before maturity, without requiring the production of said bond and mortgage and the payments credited thereon; the requiring of the production of said bond and mortgage to establish the ownership thereof. Williams v. Paysinger, 15 S.C. 571; Talbert v. Talbert, 97 S.C. 146, 81 S.E. 644.
"(18) According to the foregoing findings of fact and conclusions of law, I have calculated the amount due on said bond and mortgage and find that there is due thereon to the date of this report, to wit, the 27th day of May, 1924, is the sum of $3,658, including principal, interest, and attorney's fees, all according to the following statement:
Principal ................................................... $3,000 00
Interest from July 1, 1922, to May 27, 1924, at 8 per cent ..... 458 00
Attorney's fees ................................................ 200 00
---------
$3,658 00
"(19) I further find that the sum of $200 is a very reasonable fee to be allowed the attorneys for the plaintiff for services rendered and to be rendered herein until the final adjudication of this action.
" (20) I further find that the lien of said mortgage is and constitutes a first and prior lien covering the premises as therein described and as set forth in the complaint in this action.
"(21) I would therefore recommend that the plaintiff have judgment against the defendant for the $3,658, with interest thereon from the 27th day of May, 1924, and that, upon failure to pay or make adjustment of the same on or before 90 days from the date of any
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