Singleton v. Mullins Lumber Co.

• Citation: 108 S.E.2d 414,234 S.C. 330
• Decision Date: 16 April 1959
• Docket Number: No. 17525,17525
• Court: United States State Supreme Court of South Carolina
• Parties: Hannah M. SINGLETON, Bettle S. Ford, Janie S. Washington, Harry Singleton, Gladys Jordan, Mary Lee Gamble, General Lee Gamble, Robert W. Gamble, Maceo Gamble, Janie R. Murphy and Ernest Murphy, Minors Under Twenty-one Years of Age, By Their Guardian Ad Litem Ernette Washington and Violet Gamble, Appellants, v. MULLINS LUMBER COMPANY, a Corporation, Lilly Dozier, Lizzie Barnes, Bessie Coleman, Louis Dorsey, Mary Roe, Representing Such Persons as May Be The Unknown Heirs, Next of Kin, Administrators, Executors, or Assigns, of the Estate of Thomas E. Cooper, Deceased, and Henry Doe, Representing Such Persons As May Be the Unknown Heirs, Next of Kin, Administrators, Executors or Assigns of the Estate of W. M. McIntyre, Deceased, Respondents.

Page 414

108 S.E.2d 414

234 S.C. 330

Hannah M. SINGLETON, Bettle S. Ford, Janie S. Washington Harry Singleton, Gladys Jordan, Mary Lee Gamble, General Lee Gamble, Robert W. Gamble, Maceo Gamble, Janie R. Murphy and Ernest Murphy, Minors Under Twenty-one Years of Age, By Their Guardian Ad Litem Ernette Washington and Violet Gamble, Appellants, v. MULLINS LUMBER COMPANY, a Corporation, Lilly Dozier, Lizzie Barnes, Bessie Coleman, Louis Dorsey, Mary Roe, Representing Such Persons as May Be The Unknown Heirs, Next of Kin Administrators, Executors, or Assigns, of the Estate of Thomas E. Cooper, Deceased, and Henry Doe, Representing Such Persons As May Be the Unknown Heirs, Next of Kin Administrators, Executors or Assigns of the Estate of W. M McIntyre, Deceased, Respondents.

No. 17525.

Supreme Court of South Carolina.

April 16, 1959.

Elliott D. Turnage, Darlington, for appellants.

Woods & Woods, Marion, S. Raymond Pridgen, Mullins, for respondents.

LEGGE, Justice.

By this action, commenced in September, 1957, the heirs of a deceased mortgagor seek to set aside a decree of foreclosure rendered in 1909, and to have themselves declared owners of the mortgaged premises. The Judge of Probate of Marion County, to whom the cause was referred, filed his report dated May 19, 1958, recommending that the complaint be dismissed. Upon exceptions to that report, it was heard before the Honorable G. Badger Baker, Judge of the Twelfth Circuit; and from his decree of July 14, 1958, overruling the exceptions and dismissing the complaint, comes this appeal.

The property in question, a lot on Laurel Street in the town of Mullins, was conveyed to Boyd Singleton by Mary M. McIntyre by deed dated May 11, 1906, the consideration recited being $150. On May 13, 1906, as security for his note in the amount of $82.45 bearing the same date, Boyd Singleton mortgaged the said lot to Thomas E. Cooper.

In 1908 Boyd Singleton died intestate, leaving as his heirs his widow, Hannah, and his five children, namely: Kemper and Joe, children of a former marriage; and Charles, Mary and Bettie, his children by Hannah.

In 1909 Thomas E. Cooper instituted suit in the court of common pleas for Marion County against Boyd Singleton's heirs before mentioned, for foreclosure of his mortgage; and, the defendants having been adjudged in default, the cause was referred to the Master to compute the amount due on the mortgage debt, and with leave to report any special matter. By decree of the Honorable Robert Aldrich, Presiding Judge, dated March 22, 1909, the Master's report was confirmed and the mortgaged premises were ordered sold at public auction after due notice; and pursuant to that decree they were sold by the Master on May 3, 1909, to W. M. McIntyre for $20, he being at that figure the highest bidder. The Master's report of sale was confirmed by order of the Honorable John S. Wilson, Presiding Judge, dated June 5, 1909.

The complaint in the instant case alleged that the foreclosure before mentioned was null and void because in it there had been: (1) no legal service of process upon the defendants; (2) no order appointing a guardian ad litem for minor defendants; (3) no order of reference as required by circuit court rule 51; (4) no appearance at reference by the guardian ad litem; (5) no testimony at reference as required by rule 51; (6) no report by the Master of his findings of fact and conclusions of law 'as required by law'; and (7) no filing by the plaintiff of his affidavit or a certificate of the Clerk of Court that a notice of lis pendens had been filed as required by said rule.

The complaint alleged that as the result of the nullity of said foreclosure proceedings the mortgagor--mortgagee relationship continued after their termination, 'but that the unknown heirs, administrators, executors and assigns of said Thomas E. Cooper (joined as defendants under the fictitious name of Mary Roe) and W. M. McIntyre (joined as defendants under the fictitious name of Henry Doe) have as constructive trustees been in possession and control of said lot since the date of said action and should be held to account for the rents and profits derived from same. That defendants Lilly Dozier, Lizzie Barnes, Louis Dorsey and Bessie Coleman and Mullins Lumber Company are each of them in possession of separate portions. But that the nature and extent of the claims of said defendants in and to the title and right to peaceable possession of said lot and said portions thereof are to the plaintiffs unknown.' Prayer was for judgment decreeing that the foreclosure proceedings and the deed from the Master to W. M. McIntyre were void, and that the plaintiffs are the owners of said lot and entitled to possession of it.

Lilly Dozier and her children, James Dozier, Theodore Dozier and Gomille Dozier Gore, answered, alleging title in herself and them, as heirs of Lilly's husband, Span Dozier (deceased intestate in 1946) by virtue of a deed from Mary M. McIntyre to Span Dozier in 1906, another from the same grantor to Span and Lilly in 1911, and another from H. M. Felder to Span in 1912. They also pleaded a general denial and the ten-year, the twenty-year and the forty-year statutes of limitation. To this answer the plaintiffs replied, alleging that the lot conveyed to Span Dozier in 1906 is not involved in this action; that neither the lot referred to in the complaint nor any of the other lots referred to in the answer has ever been surveyed so as to determine true boundaries; that therefore the defendants' possession has not been open, notorious, exclusive or adverse to that of the plaintiffs; that during all of the period mentioned in the said answer the record title to the property described in the complaint was held 'by parties who had obtained same by actual or constructive fraud' of which the plaintiffs knew nothing until a few days prior to commencement of the action; and that the equitable relief sought is not barred by the statutes of limitation.

Mullins Lumber Company answered, pleading a general denial, the statutes of limitation, and laches. To this the plaintiffs replied, alleging that W. M. McIntyre, who had bought the property in question at the foreclosure sale for a grossly inadequate price, conveyed a portion of it in October, 1909, to one A. M. Lewis for $350; that in 1914 Lewis conveyed said portion, for $1,250, to H. O. Schoolfield, founder of Mullins, Lumber Company, with whom said company is in privity; that both Lewis and Schoolfield had actual and constructive notice of the defects in the foreclosure, and were therefore not bona fide purchasers; that at the time of the foreclosure and of the subsequent conveyances, Hannah Singleton was practically illiterate and 'unable to understand the nature and extent of the frauds being perpetrated by the defendants upon her title to the property and that of her children'; that said fraud was discovered by them a few weeks prior to this action; and that therefore the statutes of limitation do not bar the plaintiffs from the equitable relief which they seek.

The defendants Barnes, Coleman, and Dorsey did not answer.

At the reference the plaintiffs introduced in evidence, in addition to the deed from Mary M. McIntyre to Boyd Singleton before mentioned, and the judgment roll in the foreclosure proceeding of 1909 (which included Boyd Singleton's mortgage to Thomas E. Cooper), the following deeds:

1. Mary McIntyre to Span Dozier, dated March 1, 1906.

2. Mary M. McIntyre to Span and Lilly Dozier, dated May 25, 1911.

3. Mary M. McIntyre to H. M. Felder, dated July 5, 1911.

4. H. M. Felder toSpan Dozier, dated November 6, 1912.

5. W. M. McIntyre to A. M. Lewis, dated October 12, 1909.

6. A. M. Lewis to H. O. Schoolfield, dated December 12, 1914.

The plaintiffs offered as witnesses the following: their attorney, who testified as to his examination of the records in the office of the clerk of court and proffered in evidence the exhibits before mentioned; Cornelius Murray, a professional photographer, who in company with plaintiffs' attorney took some pictures, not in the record before us, and made certain measurements on Laurel Street; Hannah Singleton, the widow of Boyd Singleton; Minnie Singleton, the widow of Boyd Singleton's son Kemper; and Bettie Ford, a daughter of Boyd and Hannah. We shall review the testimony of the three witnesses last mentioned, bearing in mind that, as stated in the minutes of the reference, 'prior to the commencement of the testimony it was agreed by counsel for the parties that all testimony presented would be taken, but the right of any party to object to any portion or portions of the testimony was reserved and such objection may be made after the testimony is completed, and at or prior to the argument before the Judge of Probate.'

Hannah Singleton, Boyd's widow, who gave her age as seventy-seven, testified as follows: She and Boyd had lived, up to the time of his death about the year 1908, in Mullins, but not on the mortgaged premises. At some time after his death she moved, and now lives, 'in the mortgage about three miles from Mullins. She did not know of the existence of the mortgage until Mr. Tom Cooper served the summons in the foreclosure suit upon her in the Mullins pos toffice; no paper was ever served upon her at her home. At that time neither Joe nor Kemper, Boyd's children by his previous marriage, was living with her; both of them were married; Joe and his wife and small children were living in Richmond, Virginia. Hannah's own children, Charles, Mary and Bettie, were small, and lived with her. Charles, who was born in 1902, died during World War I; he had never married. Mary died about 1954. After the foreclosure 'paper' had been served upon her, she 'asked Mr. Cooper would he take half of this money and run the other half until another year, and he told me, no, he wanted it all.' Then she went to Mr. Schoolfield, for whom Boyd had worked as night...