Turbeville v. Gordon

• Citation: 113 S.E.2d 68,236 S.C. 57
• Decision Date: 24 February 1960
• Docket Number: No. 17618,17618
• Parties: A. H. TURBEVILLE, doing business under the trade name and style of Mullins Builders Supply, Appellant, v. Mary J. GORDON, Richard Roe, Mary Doe, and also all other persons unknown, claiming any right, title, estate, interest in, or lien upon the real estate described in the complaint herein, as the heirs at law of Richard Gordon, deceased, defendants, of whom Mary J. Gordon is, Respondent.
• Court: United States State Supreme Court of South Carolina

Page 68

113 S.E.2d 68

236 S.C. 57

A. H. TURBEVILLE, doing business under the trade name and style of Mullins Builders Supply, Appellant, v. Mary J. GORDON, Richard Roe, Mary Doe, and also all other persons unknown, claiming any right, title, estate, interest in, or lien upon the real estate described in the complaint herein, as the heirs at law of Richard Gordon, deceased defendants, of whom Mary J. Gordon is, Respondent.

No. 17618.

Supreme Court of South Carolina.

Feb. 24, 1960.

Charles T. Speth, Woods & Woods, Marion, for appellant.

Elliott D. Turnage, Darlington, for respondent.

TAYLOR, Justice.

This is an appeal by the plaintiff from an order of the Court of Common Pleas for Marion County granting defendant's motion that the complaint be dismissed and the defendant be granted judgment on the pleadings and the costs be taxed against plaintiff. This case was previously before us wherein demurrer of the defendant, Mary Gordon, was overruled but sustained as to additional defendants. This Court affirmed the order of the Circuit Court, 233 S.C. 75, 103 S.E.2d 521, with the facts being stated as follows:

'This is an appeal by Mary J. Gordon from an order overruling her demurrer to a complaint. The question presented is whether it states facts sufficient to constitute a cause of action against her. Stripped of non-essentials, the complaint discloses the following:

'In 1944 Mary J. Gordon and her husband, Richard Gordon, acquired title to two lots of land in the town of Mullins, South Carolina designated on a certain plat as Lots Nos. 18 and 19. Richard died intestate in 1951, survived by Mary and their five children. He also left surviving certain children by a previous marriage whose names are alleged to be unknown. Mary resided in a house on Lot 18. On or about September 5, 1953, Mary, along with Daisey Gordon Mitchell and George Mitchell, her daughter and son-in-law, went to the office of A. H. Turbeville, plaintiff in this action 'for the stated purpose of entering into negotiations for the construction of a house on Lot No. 19'. Plaintiff informed these parties that he could not construct a house upon said lot because Mary's children had an interest therein. (He did not then know that there were other children of Richard Gordon by a previous marriage.) Plaintiff further stated that he would be unwilling to construct said house unless he was paid a past-due account contracted by Mary and her deceased husband. A few days later the five children of Mary conveyed to her all of their right, title and interest in the lot on which the house was to be built and Mary paid the past-due account above mentioned.

'On or about September 29, 1953, plaintiff in the presence of Mary J. Gordon, commenced construction of the house. 'At or about the time the house was approximately three-quarters completed, the defendant, Mary J. Gordon, told the plaintiff's agents to stop working thereon; immediately thereafter the plaintiff called upon the defendant, Mary J. Gordon, who thereupon stated that the plaintiff was building 'too nice a house'; after the discussion between the plaintiff and the defendant, Mary J. Gordon, at which time the plaintiff reminded and recalled the facts to Mary J. Gordon that Daisey G. Mitchell and George Mitchell had informed the plaintiff that Mary J. Gordon would make, execute and deliver to the plaintiff a promissory note and mortgage on the premises at the time of the completion of the aforesaid house to secure the unpaid balance of the costs of the labor and materials furnished and utilized in the construction of said house and that the said Daisey G. Mitchell and George Mitchell were to satisfy the aforesaid indebtedness on behalf of the defendant, Mary J. Gordon, Mary J. Gordon permitted, allowed and condoned the completion of the aforesaid house.'

'On or about December 10, 1953, plaintiff had prepared and presented to Mary J. Gordon for execution a note and mortgage in the sum of $3,708.99, which 'due to reasons unknown to plaintiff' she refused to sign. (Apparently this amount represented the balance due for construction of the house. The complaint does not disclose the source of the payments previously made.) The construction of the house was completed during the early part of January, 1954, and was immediately occupied by Daisey and George Mitchell. George later died and thereafter Daisey vacated the premises. Since then Mary has rented the property and collected the rents but has failed to pay anything on plaintiff's indebtedness.

'Joined as defendants along with Mary were all persons unknown claiming any interest in the premises. It was alleged that such unknown persons accepted the benefits of the improvements made on the premises by plaintiff and were thus unjustly enriched. Judgment was sought against both Mary and the unknown heirs for $3,708.99, representing the balance due for construction of the house, and for the further sum of $1,575 alleged to be the reasonable value of the use of the property.'

To the foregoing complaint the defendant filed an amended answer in which she realleges and incorporates all matters set forth in the original answer and by way of further answer, pleads the statute of frauds as a bar to recovery, contending that plaintiff seeks to hold defendant liable on...