Whitmire v. Boyd

• Decision Date: 05 October 1898
• Citation: 31 S.E. 306,53 S.C. 315
• Parties: WHITMIRE v. BOYD et al.
• Court: South Carolina Supreme Court

31 S.E. 306

53 S.C. 315

WHITMIRE v. BOYD et al.

Supreme Court of South Carolina

October 5, 1898

Appeal from common pleas circuit court of Greenville county; James Aldrich. Judge.

Suit by Thomas B. Whitmire against H. Y. Boyd and others. There was a decree for plaintiff and some of the defendants, and plaintiff and defendant H. Y. Boyd appeal. Modified.

Following is the decree of the court below, viz.:

"This case comes before this court upon the pleadings; order of reference; orders made by the master; the testimony taken by him; his report, containing his conclusions upon the facts and the law; the exceptions of the plaintiff; and the exceptions of the defendants H. Y. Boyd, W. A. Hudson, and B. M. McGee. These exceptions are quite numerous and long and, taken together, and so far as the parties excepting are concerned, practically reopen the case. I will therefore, considers the case upon its merits, as far as it is necessary to do so, and my conclusions will dispose of the exceptions.

"To understand the issues, it will be necessary to get a correct view of the facts. Plaintiff instituted this action for the recovery of judgment upon a note, sealed, and the foreclosure of a mortgage of real estate given to secure the payment of said note. The said note and mortgage are forgeries. The land described in said forged mortgage was, in 1894, the property of the plaintiff. During the year 1894 the plaintiff verbally agreed with A. R. Fowler, defendant above named, to sell the land in question to him. On May 22, 1895, a written contract, under seal, and witnessed by two witnesses, was executed by plaintiff and said A. R Fowler. This written agreement is to the effect that A. R. Fowler is 'to have the use' of the land described in complaint during 1895, and for said 'use' said defendant agreed to pay to plaintiff 'on or before December 1, 1895, one hundred and fifty dollars.' This instrument then concludes in these words: 'It is further agreed that if the said A. R. Fowler shall pay to the said T. B. Whitmire, on or before December 1, 1895, $500.00, with interest from January 1, 1895, at 8 per cent. per annum, including the above $150.00, and shall execute to the said T. B. Whitmire a mortgage for $500.00, payable January 1, 1898, on said land, bearing interest from January 1, 1897, at 8 per cent. per annum, then the said T. B. Whitmire shall execute and deliver to the said A. R. Fowler a warrantee [warranty] deed to said 188 acres of land.' A. R. Fowler put the defendant H. Y. Boyd in possession of the land in the latter part of December, 1894, and thereafter he continued in possession of the same. Prior to his moving upon the place, said Boyd had made a bargain with A. R. Fowler to purchase the lands from him. Fowler represented to Boyd that he was the owner of the land; but Boyd, having heard that plaintiff was talking of renting the land, went to see plaintiff as to whether or not he had sold the land to Fowler. Plaintiff told him he had sold it to Fowler, and said nothing about Fowler owing him anything on the sale. Boyd did not know that A. R. Fowler owed plaintiff the purchase money of the land until after he had taken a deed for the land from A. R. Fowler and executed his note and mortgage to said Fowler. Said deed, note, and mortgage will be considered later on. After these transactions were completed, Boyd heard that A. R. Fowler owed plaintiff the purchase money of the land.

"The master states no conclusions upon these issues; but I think that he facts above stated are material, and that they throw a flood of light upon this cause and other issues raised therein. These facts or conclusions are fully substantiated by the direct, positive, and unequivocal statements in the testimony of the defendant Boyd. The statements of plaintiff, when directly questioned in reference to these facts, are uncertain, indefinite, and vague, and do not contradict the statements of Boyd, and the testimony of Boyd is in full accord with the established facts in the cause.

"On January 22, 1895, A. R. Fowler, by formal deed of conveyance, duly conveyed the land in question to Boyd. This deed was duly made, executed, and delivered at the time stated. No doubt about that. The consideration therefor was that Boyd was to take the land subject to an old mortgage for $1,000 held by one McDowell, and to give to Fowler a note for $800, secured by a mortgage of the land. This Boyd did, for on the same day, to wit, January 22, 1895, he gave to said Fowler his note, which read as follows: '$800. Fountain inn, January 22d, 1895. On the first day of January, 1898, I promise to pay to the order of A. R. Fowler eight hundred ($800.00) dollars, with interest at the rate of eight per cent. per annum from date till paid. Interest to be paid and computed annually. For value received. I agree to pay, in case this note is collected by suit, 10 per cent. attorney's fees. [Signed] H. Y. Boyd, [L. S.] Attest: W. A. Curry.' To secure his note, at the same time and place, Boyd executed and delivered to A. R. Fowler a mortgage of the aforesaid land. The said mortgage is in the usual form, and was duly recorded in the office of the register of means conveyances of Greenville county on February 9, 1895. While it may not be material, it is proper to note that the mortgage undertakes to recite the terms and conditions of the note it was given to secure, but in these recitals nothing is said as to the attorney's fee. These transactions were all executed in good faith by Boyd, and he believed that they were honest and efficacious.

"As against A. R. Fowler, Boyd had a good title to the land. Fowler's deed conveyed all the right, title, and interest he had therein to Boyd. It also conveyed any right, title, or interest which Fowler might acquire in the land. Plaintiff said, in his testimony, and it is a fact in the case, that he made the bargain with Fowler evidenced by their written agreement of May 22, 1895, already stated, in 1894, or prior to the execution of the agreement. His exact words are: 'I did not have any written contract with Mr. Fowler for the sale till May, 1895. Prior to that I had agreed to sell to him, and he had made a partial payment on it.' There is no doubt but that the contract for sale between plaintiff and Fowler as to the sale of the land was made before the conveyance of Fowler to Boyd, and that the written agreement evidencing that contract was not executed until after Boyd's purchase, viz. in May, 1895.

"As against plaintiff, Boyd stood in the shoes of A. R. Fowler. By complying with the contract, Boyd could have forced plaintiff to make the titles to him. Plaintiff could stand upon said contract, and have refused to execute a title until that contract was complied with any duly carried out, either by A. R. Fowler, or H. Y. Boyd as the assignee of Fowler. Again, and this is important, plaintiff and Fowler, or plaintiff and Boyd, or all of them, could, by consent, change or modify the aforesaid contract, and complete the transactions upon these changed or modified terms. Did plaintiff and Fowler afterwards change or modify the terms of the contract, agree thereon, and execute same? This issue, to be considered further on, is important.

"So far in the discussion of this case we have dealt with real facts. I regret to say that criminal conduct, involving moral turpitude, seems, from this point onward, to enter the case. It is proper to say, and I take pleasure in stating, that A. R. Fowler alone, and no one else, a party to this action or otherwise, suggested, knew of, or connived at the crimes of said Fowler. Fowler, it is evident, was as smart and cunning as he was wicked and depraved. H. Y. Boyd seems to be an honest and good, but not specially bright, man, and was the brother-in-law of A. R. Fowler. In various ways he deceived Boyd, and, as we have seen, sold him the land mentioned. He took Boyd's note and mortgage, forged copies of same, or what were intended to be copies, and disposed of these forged papers to honest men, for value. Fowler is now, as was stated in argument, a convict in the Georgia penitentiary, undergoing sentence for crimes committed in that state.

"On February 19, 1895, A. R. Fowler placed, as collateral security, in the hands of the defendant B. M. McGee, the genuine note of Boyd to himself, hereinbefore set forth, and a forged copy of said mortgage. At the time stated, A. R. Fowler borrowed from Mr. McGee $400, and, as collateral security, assigned to him the Boyd note and forged mortgage. Mr. McGee knew of the old McDowell mortgage on the land, and refused to lend him the money unless he would get J. D. Harris to sign the note also. A. R. Fowler induced J. D. Harris to sign a note with him, dated February 19, 1895, for $400, payable to Mr. McGee on November 15, 1895, with interest after maturity at the rate of 8 per cent. per annum; also for 10 per cent. attorney's fees, if the note had to be collected by law. At the foot of said note, and as a part thereof, these words are written, 'and place as collateral security note and mortgage given me by H. Y. Boyd for $800, as it appears.' This note is signed by A. R. Fowler and J. D. Harris. On the back of the genuine note of H. Y. Boyd to A. R. Fowler, the names, A. R. Fowler, M. J. Harris, J. D. Harris, are indorsed. Mr. McGee took the notes above stated, and the forged mortgage, and let A. R. Fowler have the money. No part of it has been paid. While the aforesaid genuine note was in the possession of Mr. McGee, he allowed A. R. Fowler to write upon the back thereof as follows: 'Received on the within note ($235.00) two hundred and thirty-five dollars, Nov. 6, 1895. A. R. Fowler.' Mr. McGee got no part of this money. Mr. McGee did not notify H. Y.

...