Wood v. Lea, 16513
| Decision Date | 11 June 1951 |
| Docket Number | No. 16513,16513 |
| Citation | 219 S.C. 409,65 S.E.2d 669 |
| Court | South Carolina Supreme Court |
| Parties | WOOD et al. v. LEA. |
Holcombe & Bomar, Spartanburg, for appellant.
L. A. Huston, Jr., Greenville, for respondent.
This is an appeal from an order refusing appellant's motion for a change of venue from Greenville County to Spartanburg County, where the appellant resides and resided at the time of the commencement of the action.
The action was brought against the appellant individually and as executor of the will of John L. Freeman to recover 'broker's commissions' claimed to be due the respondents for selling a tract of land which was owned, at the time of his death, by the said John L. Freeman, whose estate is under administration in Greenville County. The appellant (defendant) is the executor of Mr. Freeman's will, which devised the land in equal shares to the testator's four children and did not authorize the executor to sell or otherwise deal with any of his real estate.
The agreed 'Statement' in the Transcript of Record contains the following quoted paragraphs:
'On October 3, 1949, the Defendant listed the real estate for sale with the Plaintiffs for a period of 60 days, signing the paper 'Charles Lea Executor Estate John L. Freeman'. On December 12, 1949, the listing period was extended 30 days by a paper which the Defendant signed 'Charles Lea Executor'.
It is not amiss to here mention that the listing of this property for sale by the appellant with the respondents on December 12, 1949 for 30 days was more than one week after the life of the first listing on October 3, 1949 had expired, and makes no mention of the October 3rd listing; and is signed by the appellant as owner and executor. It sets no price at which the land was to be sold as did the first listing, but to the contrary contains this notation The deed conveying this property (expressing a consideration of $6,400) is dated February 23, 1950, but we assume was not delivered until March 20, 1950. However, both dates are subsequent to the expiration of the life of the last listing on December 12, 1949.
The notice of motion for change of venue was 'on the ground that the defendant (appellant), at the time of the commencement of this action, resided, and still resides, in Spartanburg County, and that the joinder of the defendant (appellant), in his capacity as executor of the Last Will and Testament of John L. Freeman, deceased, was not bona fide, no cause of action being stated against him in that capacity, but was done solely for the purpose of attempting to lay the venue of this cause in Greenville County.'
At the hearing on this motion the respondents produced the two papers hereinbefore referred to listing this real estate with the respondents for sale, and in each of which the appellant agreed to pay respondents 5% commission out of the price sold for. In the October 3, 1949 paper it was stipulated that appellant wanted the property sold for an amount which would net $7,000, but in the December 12, 1949 listing, no minimum price was fixed. In addition to these two papers, a copy of the deed from the devisees named in the will to E. A. Andrews was exhibited, and is included in the records as was a copy of the will of John L. Freeman.
The learned Circuit Judge before whom the motion for a change of venue was argued found as a fact: (1) That the appellant was a bona fide resident of Spartanburg County and was so residing at the time of the commencement of this action. (2) That the appellant was the sole qualified and acting executor of the will of John L. Freeman, and qualified as such executor in Greenville County, but that there was no provision in the will for the sale of the testator's real estate. (3) That the appellant did not join in the deed conveying the property to E. A....
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