Paramount Fund, Inc. v. Cusaac
| Decision Date | 26 January 1984 |
| Docket Number | No. 0229,0229 |
| Citation | 282 S.C. 497,319 S.E.2d 354 |
| Court | South Carolina Court of Appeals |
| Parties | PARAMOUNT FUND, INC., Respondent, v. William CUSAAC, Bertie Lee Cusaac, Teresa C. Robinson, Eddie Mae Barnes, a/k/a Maxine C. Barnes, Edna James, Edward Cusaac, Roosevelt Cusaac, Henry Cusaac, Juanita Cusaac Hamlin, Leroy Cusaac, Shirley Cusaac, and Lena Mae McCants, and John Doe, a fictitious person named to represent known and unknown heirs, minors, incompetents, persons non compos mentis, and anyone operating under a disability, who might have or claim to have any right, title and interest in and to the real estate which is the subject of this action, Defendants, of whom William Cusaac, Bertie Lee Cusaac, Eddie Mae Barnes a/k/a Maxine C. Barnes, Edna Mae James, Edward Cusaac, Roosevelt Cusaac, Henry Cusaac, Juanita Cusaac Hamlin, LeRoy Cusaac, Shirley Cusaac, and Lena Mae McCants, are Appellants. . Heard |
Russell W. Templeton, Columbia, for appellants.
E. Lee Morgan, of Hyman, Morgan, Brown, Jeffords and Rushton, Florence, for respondent.
BELL Judge:
Paramount Fund, Inc., brought this action to foreclose an unrecorded mortgage of real property allegedly executed by an unknown agent or child of Mattie Cusaac in August 1966. Cusaac died in September 1966. The circuit court ordered foreclosure. Because we believe Paramount failed to carry its burden of proving the existence of a valid mortgage, we reverse.
Prior to her death on September 20, 1966, Mattie Cusaac was the owner of a 13/18 undivided interest in certain property in Florence County. Her five minor children owned the other 5/18 interest. Mrs. Cusaac apparently desired to build a house for herself and her children on a portion of the property. In June 1966 she petitioned the Florence County Civil Court for permission to mortgage the children's interest in the property. The Civil Court granted the petition. Thereafter, Mrs. Cusaac obtained a $14,450.00 FHA loan through First Provident Corporation. The First Provident loan was secured by a first mortgage in the name of Mattie Cusaac individually and as natural guardian for her five minor children. Although Mattie Cusaac's name was signed to the First Provident mortgage, it appears from the testimony that the signature was not in her handwriting.
The mortgage to First Provident was duly recorded. Approximately six months after Cusaac's death, the First Provident loan went into default. First Provident foreclosed its mortgage sometime in 1967 and the property was bid in by the Secretary of Housing and Urban Development. The First Provident mortgage is not at issue in this suit.
The instrument giving rise to this action purports to be another mortgage executed on behalf of Mattie Cusaac on August 24, 1966. It covers a fifteen acre tract adjacent to the land which secured the First Provident mortgage. Like the First Provident mortgage, the instrument is signed in Mattie Cusaac's name, but the handwriting is not hers. An expert witness testified that the same person who signed the First Provident mortgage also signed the instrument in question here.
According to Mr. Rainwater, the president and sole stockholder of Paramount Fund, Paramount loaned $1500 to Mattie Cusaac in August 1966. The purported purpose of the loan was to complete construction on the house Cusaac was building with the First Provident loan. Paramount introduced a check for $1500, payable to Mattie Cusaac, which bears the date August 24, 1966. On the reverse side of the check is a blank endorsement in the name of Mattie Cusaac. The signature is not in Mattie Cusaac's handwriting, but in the hand of the same person who signed the purported mortgage instrument. The check bears no marks indicating it was paid by the drawee bank. Paramount introduced no other evidence that the check was ever negotiated or paid.
Mr. Rainwater and Mrs. Long, an employee of Paramount, signed the purported mortgage instrument as witnesses. Neither was able to testify that Mattie Cusaac was present at a loan closing. Neither could state who signed Cusaac's name to the mortgage instrument or the check. Long testified that if a power of attorney had been used, it would have been so indicated on the mortgage instrument. Any power...
To continue reading
Request your trial
-
U.S. Bank Trust Nat. Ass'n v. Bell
...issue rests upon the party asserting the affirmative of that issue under the pleadings."); cf. Paramount Fund, Inc. v. Cusaac, 282 S.C. 497, 499, 319 S.E.2d 354, 355 (Ct.App. 1984) (holding the mortgagee has the burden of proving a disputed mortgage by the preponderance of the 10. Although ......
-
McCall v. Finley
...liability must prove the existence of the agency, and the agency must be clearly established by the facts. Paramount Fund, Inc. v. Cusaac, 282 S.C. 497, 319 S.E.2d 354 (Ct.App.1984). "[I]t is the duty of one dealing with an agent to use due care to ascertain the scope of the agent's authori......
-
Rosemond v. Campbell
...the contract. A party asserting agency as a basis of liability must prove the existence of the agency. Paramount Fund, Inc. v. Cusaac, 282 S.C. 497, 319 S.E.2d 354 (Ct.App.1984). In this case, the evidence falls far short of establishing that Harris was a principal to the contract. There is......
-
Brown v. Investment Management and Research, Inc., 24478
...constitute a tort. § 803(1)(c). 4 of the agency, which must be clearly established by the facts. He cited Paramount Fund, Inc. v. Cusaac, 282 S.C. 497, 319 S.E.2d 354 (Ct.App.1984), for this proposition. Cusaac, however, is distinguishable in that it involved the issue of whether agency had......