Tunkle v. Padgett
| Decision Date | 14 May 1931 |
| Docket Number | 13140. |
| Citation | 158 S.E. 693,160 S.C. 274 |
| Parties | TUNKLE v. PADGETT et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Colleton County; M. L Bonham, Judge.
Action by Max Tunkle against Mary M. Padgett and others. From an adverse decree, the plaintiff appeals.
Affirmed.
The report of the master, R. M. Jeffries, and the decree of the circuit court, requested to be reported, follow:
Report of Master.
This cause was referred to me by order of the court, dated June 8 1925, directing me to take the testimony, and to hear and determine all issues raised by the pleadings, and report the same to the court, with leave to report any special matter. Accordingly, I have been attended by counsel engaged in the cause, and herewith report the testimony taken, with all exhibits attached.
This cause was originally instituted by the plaintiff against Mary M. Padgett and J. S. Padgett, through Howell & Gruber plaintiff's attorneys; the summons and complaint and lis pendens being filed October 20, 1914. The defendants duly answered, Padgett & Moorer, their attorneys. Thereafter for some reason, Messrs. Howell and Gruber were withdrawn as attorneys for the plaintiff, and the cause was conducted by Mortimer M. Jarecky, as attorney for the plaintiff. Mr Jarecky obtained an order of the court amending the complaint and dropped J. S. Padgett as a defendant and inserted in lieu thereof the other named defendants above.
A history of the cause will appear from the facts found by me as follows:
The defendant Mary M. Padgett is the wife of J. S. Padgett, and will be hereinafter referred to as Mrs. Padgett. At the time of the transactions hereinafter referred to, she was a merchant and farmer, and her husband acted as her agent in the conduct of her business.
On January 20, 1909, by mortgage recorded on February 13, 1909, Book 30, page 181, she mortgaged to C. F Rizer, a tract of 103 acres of land in Warren township, Colleton county, hereinafter referred as to the 103-acre tract.
In 1912, she bought a bill of goods from C. H. Schneider and Jake Schneider, copartners doing business under the firm name of C. H. Schneider & Bro., of Augusta, Ga., amounting to about $700 or $800, and, in order to secure the payment thereof, she executed and delivered to the said C. H. Schneider and Jake Schneider her note in the sum of $700, secured by a mortgage on the said 103-acre tract; mortgage being dated August 24, 1912, recorded on September 12, 1912, in Book 25, page 127, R. M. C. office for Colleton county.
On March 28, 1913, Messrs. Howell and Gruber, as attorneys for the Schneiders, commenced an action to foreclose the said note and mortgage, under one cause of action, and under the other cause of action to attach for the purchase money the said bill of goods. The action was brought against Mary M. Padgett and C. F. Rizer; the said C. F. Rizer holding the prior mortgage aforementioned. Under a writ of attachment, dated April 7, 1913, issued thereon, L. G. Owens, sheriff of Colleton county, through his deputy sheriff, L. C. Padgett, with the assistance of Jake Schneider, on April 7, 1913, attached and took manual possession of so much of the said goods as remained on hand, boxed and crated the same, and crated them away for safekeeping. Mrs. Padgett desired to have the attachment relieved, and repossessed herself of the attached goods, and to that end it was agreed between her and the said Schneider Bros., through the said Jake Schneider and Messrs. Howell and Gruber, attorneys for the said Schneider Bros., that she should give the said Schneider Bros. her bond in the sum of $620, in full settlement of the account, and secured the same by the first mortgage over 120 acres of land in Colleton county, S. C.; it being contracted and agreed that the said attachment should at once be relieved and the goods so attached should be redelivered to her and the mortgage aforementioned on the 103-acre tract of land immediately satisfied of record. In pursuance of this agreement, J. S. Padgett, being personally present and negotiating therefor, she executed and delivered to the said Jake Schneider and C. H. Schneider, copartners as C. H. Schneider & Bro., her bond and mortgage dated April 8, 1913, recorded on April 21, 1913, in Book 29, page 91, covering the said 120 acres of land; the same being a first lien thereover. The said Schneider agreed to forthwith satisfy the said mortgage over the 103 acres of land. Thereupon the said attachment was relieved and the goods attached redelivered to her, but the said Schneider did not satisfy the said mortgage over the 103-acre tract of land.
M. P. Howell, of the firm of Howell & Gruber, was the attorney acting for the Schneiders, and he made repeated efforts to procure the satisfaction of the 103-acre mortgage, but failed to get it from the said Schneiders. Mrs. Padgett, through her husband, became apprehensive that an advantage was being taken of her in the matter of the satisfaction of the old mortgage, and repeatedly appealed to Mr. Howell to secure the satisfaction for her, and finally Mr. Howell, on August 25, 1913, in order that Mrs. Padgett might be protected, wrote to the said J. S. Padgett, her husband, as follows:
Mrs. Padgett, through her husband, made personal efforts to secure the satisfaction of the old mortgage, and her husband went so far as to make a personal trip to Augusta, and tendered to the said Schneider Bros. The satisfaction fees under the statute. The Schneiders, at the time of the said tender, asserted that the new mortgage was given as additional collateral thereto, and they refused to satisfy the old mortgage.
Thereupon Mrs. Padgett, under date of January 31, 1914, commenced an action in the court of common pleas against C. H. Schneider and Jake Schneider, to compel the satisfaction of the old mortgage, and for damages. The return of the sheriff of Richmond county shows that the summons and complaint in that action was served personally on C. H. Schneider and Jake Schneider, in Augusta, Ga., on February 5, 1914. In this action, Messrs. Padgett and Moorer were attorneys for Mrs. Padgett.
Under date of February 5, 1914, Mr. S. H. Myers, as attorney for the Schneider Bros., addressed the following letter to Messrs. Padgett and Moorer:
Under date of February 24, 1914, Messrs. Howell and Gruber, as attorneys for the Schneiders, served notice on Messrs. Padgett and Moorer, plaintiff's attorneys in that action of a motion to set the service of the summons aside on the ground that defendants were nonresidents and the court could not acquire jurisdiction; the action being in personam, and the service being made out of the state of South Carolina. No further steps seem to have been taken in that action.
The following month, under date of March 16, 1914, the plaintiff in this action, Max Tunkle, wrote Mrs. Padgett that he had bought from the Schneiders the $620 mortgage, and asking for the payment thereof as the same became due; the first installment not yet being due, but being due the following month. Mrs. Padgett seems to have had some communication with Mr. Tunkle, for, under date of April 21, 1914, Tunkle replied that he had seen Mr. Jake Schneider and told him that the "Rizer papers" (evidently referring to the 103-acre mortgage, Rizer holding the first mortgage) were in the hands of his lawyer at Walterboro, and for him to see his lawyer, that Schneider never had those papers. He further stated that the Schneiders needed some money and Tunkle had bought the 120-acre mortgage. Tunkle offered to accept the face value, $620, in settlement.
Mrs Padgett, in the meantime, was using every effort to secure the satisfaction of the 103-acre mortgage, for the reason that she had received an offer of $1,300 for the tract of land, but the purchaser would not comply for the reason that he could not secure the satisfaction of that mortgage. Had this mortgage been satisfied, Mrs. Padgett would have been able to have sold the property for $1,300, which would have been a sufficient amount to have paid up both the Rizer debt and also the mortgage to Schneider, over the 120-acre tract, under which Tunkle claims. Being unable to secure the satisfaction of the 103-acre mortgage and to thereby sell the property and pay the mortgage and debt to Mr. Rizer, Mrs. Padgett was unable to settle with Rizer. On January 29, 1915, Rizer commenced an action to foreclose his mortgage on the 103-acre tract. In this...
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