Twitty v. Harrison, No. 17212

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtTAYLOR; STUKES
Citation94 S.E.2d 879,230 S.C. 174
PartiesMartha W. TWITTY, Appellant, v. G. M. HARRISON, Respondent.
Docket NumberNo. 17212
Decision Date30 October 1956

Page 879

94 S.E.2d 879
230 S.C. 174
Martha W. TWITTY, Appellant,
v.
G. M. HARRISON, Respondent.
No. 17212.
Supreme Court of South Carolina.
Oct. 30, 1956.

Page 880

[230 S.C. 175] A. F. Woods, Marion, Paulling & James, Darlington, for appellant.

[230 S.C. 176] James P. Mozingo, III, John L. Nettles, Darlington, for respondent.

[230 S.C. 177] TAYLOR, Justice.

This appeal comes from the Court of Common Pleas for Darlington County where appellant brought an action to foreclose a mortgage of real estate. The defendant, respondent, pleaded payments to Samuel Want, who it is alleged was plaintiff's agent authorized to receive same. Judge Lewis, before whom the case was tried, found for the defendant on the issue of agency, held that the mortgage obligation had been paid in full, and ordered the mortgage cancelled of record. From that decree comes this appeal which will be determined by resolving the question of whether or not the evidence preponderately established Mr. Want's agency.

Except where the facts have been settled by a jury, whose verdict has not been set aside, it is the duty of this court in equity cases to review challenged findings of fact as well as matters of law. Const. 1895, Article V, Section 4; Bates v. Bates, 213 S.C. 26, 48 S.E.2d 612; Little v. Little, 215 S.C. 52, 53 S.E.2d 884; Gilbert v. McLeod Infirmary, 219 S.C. 174, 64 S.E.2d 524, 24 A.L.R.2d 60. But such duty on our part does not require that we disregard the findings below, or that we ignore the fact that the trial Judge who saw and heard the witnesses is in better position than this court to evaluate their credibility; nor does it relieve the appellant of the burden of [230 S.C. 178] convincing this court that the trial Judge committed error in his findings of fact. Cogswell v. Cannady, 135 S.C. 365, 133 S.E. 834.

On December 31, 1952, respondent Harrison executed and delivered to Darlington County Bank & Trust Company his promissory note in the amount of $2,500 payable in ten consecutive quarterly installments of $250 each, the first being payable on March 31, 1953, together with interest on the principal balance remaining from time to time unpaid, at the rate of 6 per cent per annum, payable quarterly, from the date of the note. On the same date, as security for its payment, he executed and delivered to the said bank his mortgage of certain real estate in Darlington County. The note and mortgage provided that default in the payment of interest, or of any installment of principal, should render the whole amount of the obligation immediately due and payable

Page 881

at the option of the mortgagee; and further provided that the obligor should have the right 'to pay the whole of the said indebtedness, or any part thereof in excess of the payments hereinabove stipulated, on any installment paying date.' The mortgage was recorded on January 3, 1953.

The late Samuel Want, Esq., a prominent attorney of Darlington, was engaged extensively in handling loans on real estate; and at the time mentioned was President of Darlington County Bank & Trust Company. Mr. Harrison testified that he went to Mr. Want to borrow the money in question, and that the mortgage above mentioned was executed in Mr. Want's law office. On February 3, 1953, the said note and mortgage were assigned by the bank, without recourse, to the appellant Twitty. Thereupon the amount of the obligation was charged on the bank's records to the account of 'Samuel Want, Attorney'; and opposite the ledger entry of the transaction appears a notation in the handwriting of Mr. D. W. Horton, then Cashier: 'Taken up by Mr. Want,' and another, also in Mr. Horton's handwriting, 'Transferred to Martha W. Twitty.' Mr. Horton testified [230 S.C. 179] that he made the first of these notations on February 3, 1953, and the other at some later date.

Mrs. Twitty testified that the consideration for the assignment to her was the full amount of the obligation as of February 3, 1953, and that this consideration was paid by her cancellation of a prior mortgage which she held over the same property, and by her check for the difference between the balance owing her on the old mortgage and the amount of the new mortgage obligation, this check being in the amount of $1,563.34, dated February 7, 1953, drawn on her savings account in the Citizens Bank of Darlington, and made payable to the order of 'Mr. S. Want'.

The prior mortgage of Harrison to Twitty was dated September 22, 1951, and was in the amount of $2,250, payable $250 on the 22nd day of each third month, for twenty-one months, with a final payment of $500 two years from date, and interest was at 6 per cent, payable quarterly. This mortgage appears to have been originally made out to Darlington County Bank & Trust Company, and to have been purchased by Mrs. Twitty on November 21, 1951. Mr. Want's ledger record of the mortgage shows the following payments of principal and interest made by Harrison:

'12/22/51 Principal--Paid by $250.00
                 Interest Harrison 33.75
                250 retained on investment 22.13 int.
                 deducted from $30 due Mrs. Twitty--$7.87
                 Rem.
                 3.75 to S. W.
                3/19/52 Principal--Paid by $250.00
                 Interest Harrison 30.00 Rem.
                6/19/52 Principal--Paid by $250.00
                 Interest Harrison 26.25 Rem.
                9/20/52 Principal 500.00
                 Interest 22.50 Rem.
                12/24/52 Principal 250.00
                 Interest 15.00 Rem.
                 Balance principal $750.00
                 Paid in full and rem.'
                

Page 882

[230 S.C. 180] In reference to the mortgage here involved, Mrs. Twitty testified that on January 7, 1953, she told Mr. Want 'that I am leaving the decision in regard to the Harrison mortgage in your judgment.' She also testified that she received from Mr. Want three checks payable to her order, of the dates, in the amounts and bearing notations, as follows:
'April 1, 1953, $287.50, G. M. Harrison, Prin. $250.00
                 Int. 37.50
                June 30, 1953, 33.75, G. M. Harrison, Int.
                July 10, 1953, 250.00, G. M. Harrison, Prin.'
                

Mr. Want's ledger record shows the following payments to him by Harrison:

4/2/53, Pd. by Harrison, Prin. $250.00
                 Int. 37.50 3 Mos. Rem.
                6/30/53, Pd. by Harrison, Int. 33.75
                 Only Rem.
                7/10/53, Pd. by Harrison 250.00
                9/25/53, Pd. by Harrison to S. Want 2030.00 Rem.
                Balance prin. 2,000.00
                 Int. 30.00'
                

It is undisputed that the payment of $2,030 above referred to was not remitted by Mr. Want to Mrs. Twitty.

Mrs. Twitty...

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9 practice notes
  • Lewis v. Lewis, No. 26973.
    • United States
    • South Carolina Supreme Court
    • May 9, 2011
    ...the preponderance of the evidence.”); Inabinet v. Inabinet, 236 S.C. 52, 55–56, 113 S.E.2d 66, 67 (1960) (citing Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d 879 (1956)) (“Our duty in equity cases to review challenged findings of fact as well as matters of law does not require that we disreg......
  • Clyde v. Johnson, No. 5079.
    • United States
    • Court of Appeals of South Carolina
    • January 30, 2013
    ...of the burden of convincing this court that the trial [j]udge committed error in his findings of fact. [742 S.E.2d 10]Twitty v. Harrison, 230 S.C. 174, 177–78, 94 S.E.2d 879, 880 (1956) (citations omitted).LAW/ANALYSISI. Unjust Enrichment and Quantum Meruit Johnson contends the trial court ......
  • Dibble v. Dibble, No. 18533
    • United States
    • United States State Supreme Court of South Carolina
    • July 14, 1966
    ...the burden of convincing this court that the judgment appealed from was contrary to the preponderance of the evidence. Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d 879; Simonds v. Simonds, 232 S.C. 185, 101 S.E.2d 494; Chapman v. Scott, 234 S.C. 469, 109 S.E.2d 1; Watson v. Wall, 239 S.C. 10......
  • Inabinet v. Inabinet, No. 17617
    • United States
    • United States State Supreme Court of South Carolina
    • February 24, 1960
    ...does it relieve appellant of the burden of convincing this court that the trial judge erred in his findings of fact. Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d Page 68 Appellant, arguing against the trial judge's finding 'that plaintiff by his conduct or his acts deserted the defendant', u......
  • Request a trial to view additional results
9 cases
  • Lewis v. Lewis, No. 26973.
    • United States
    • South Carolina Supreme Court
    • May 9, 2011
    ...the preponderance of the evidence.”); Inabinet v. Inabinet, 236 S.C. 52, 55–56, 113 S.E.2d 66, 67 (1960) (citing Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d 879 (1956)) (“Our duty in equity cases to review challenged findings of fact as well as matters of law does not require that we disreg......
  • Clyde v. Johnson, No. 5079.
    • United States
    • Court of Appeals of South Carolina
    • January 30, 2013
    ...of the burden of convincing this court that the trial [j]udge committed error in his findings of fact. [742 S.E.2d 10]Twitty v. Harrison, 230 S.C. 174, 177–78, 94 S.E.2d 879, 880 (1956) (citations omitted).LAW/ANALYSISI. Unjust Enrichment and Quantum Meruit Johnson contends the trial court ......
  • Dibble v. Dibble, No. 18533
    • United States
    • United States State Supreme Court of South Carolina
    • July 14, 1966
    ...the burden of convincing this court that the judgment appealed from was contrary to the preponderance of the evidence. Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d 879; Simonds v. Simonds, 232 S.C. 185, 101 S.E.2d 494; Chapman v. Scott, 234 S.C. 469, 109 S.E.2d 1; Watson v. Wall, 239 S.C. 10......
  • Inabinet v. Inabinet, No. 17617
    • United States
    • United States State Supreme Court of South Carolina
    • February 24, 1960
    ...does it relieve appellant of the burden of convincing this court that the trial judge erred in his findings of fact. Twitty v. Harrison, 230 S.C. 174, 94 S.E.2d Page 68 Appellant, arguing against the trial judge's finding 'that plaintiff by his conduct or his acts deserted the defendant', u......
  • Request a trial to view additional results

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