Younts v. Starnes

CourtUnited States State Supreme Court of South Carolina
Citation42 S.C. 22,19 S.E. 1011
PartiesYOUNTS et al. v. STARNES et al.
Decision Date26 July 1894

Mortgages — Enforcement by Surviving Partner—Estoppel by Deed.

1. A mortgage may be enforced by the survivors of a firm to which it was given.

2. A deed of land was given in 1882, and a mortgage was taken back and recorded; and in 1886, the grantee, never having recorded his deed, as he believed it was defective, asked for and received a new deed as a substitute for the one given in 1882, and containing covenants of warranty, though the mortgage had not been paid. Held, that the grantor was not estopped from setting up his mortgage against one who took a mortgage after the delivery of the new deed on a debt contracted after such delivery.

Appeal from common pleas circuit court of Lancaster county; Ernest Gary, Judge.

Action by J. A. Younts and W. E. Younts, as surviving partners of S. Younts, Son & Co., against J. R. Starnes, D. EC. Starnes, Samuel Wittkowsky and others, to foreclose a mortgage on lands. Judgment was rendered for plaintiffs, and Wittkowsky appeals. Affirmed.

Wylie & Wylie, for appellant.

R. E. & R. B. Allison and Jones & Williams, for respondents.

McGOWAN, J. This was a proceeding to foreclose a mortgage on the tract of land described in the complaint, executed by the defendants to the plaintiff J. A. Younts and one Samuel Younts, for a balance of the purchase money of said tract of land sold and conveyed to the defendants. The case depends largely upon the facts, which are somewhat complicated; and, that the points may be clearly understood, we will state the principal findings of facts by the referee, which are as follows: "(1) That on January 20, 1882, S. Younts and J. A. Younts (then the firm of S. Younts & Son) sold and conveyed to the defendants J. R. and D. H. Starnes a tract of land containing about one hundred acres (the same in contention here), and took their notes for the payment of the purchase money, $2,500, —two notes, each in the sum of $1,250, dated January 20, 1882, —and in order to secure these notes the Starncscs on the same day executed and delivered to S. younts & Son the aforesaid mortgage of the tract of land. (2) That the deed of conveyance of the same date (January 20, 1882) was never recorded; and that the said mortgage of January 20, 1882, from J. R. and D. H. Starnes to S. Younts & Son, was duly recorded in the proper office of Lancaster county on January 30, 1883. (3) That subsequent to January 20, 1882, the plaintiff W. E. Younts became a member of said firm of S. Younts & Son, —the style of the firm being thereafter S. Younts, Son & Co., —the latter-named firm thereby becoming the owners and holders for value of the notes and mortgage aforesaid. That later the said S. Younts, the father of plaintiffs, died intestate, leaving the plaintiffs as the only 'survivors" of the said firm of S. Younts, Son & Co., and, as such 'survivors, ' the owners and holders for value of the said notes and mortgage. (4) That since the execution of the notes aforesaid the defendants J. R. and D. H. Starnes have paid in full one of them, which was surrendered by plaintiffs. That on the other note—the one mentioned in the complaint—the defendants J. R. and D. H. Starnes have made sundry payments, which are all stated, leaving a balance due of $539.63 and interest. (5) That on March 17, 1886, the said S. Younts and J. A. Younts (then the firm of S. Younts & Son) executed and delivered to the defendants J. R. and D. H. Starnes a second deed of conveyance to the said tract of land conveyed or sought to be conveyed in the deed of January 20, 1882. That the deed of March 17, 1886, was duly recorded in the proper office in Lancaster county on April 15, 1886. (6) That the deed of March 17, 1886, was executed and delivered by the said S. Younts and J. A. Younts to the defendants J. R. and D. H. Starnes, at their request, who had been informed that the deed of January 20, 1882, was defective, in that it was signed 'S. Younts & Son, ' instead of by the individual members of the firm, viz. S. Younts and J. A. Younts. That it was the intention of the parties that the deed of March 17, 1886, was to take the place of, or to be a substitute for, the deed of January 20, 1882, and that the new transaction was in no way to impair the mortgage debt, or to invalidate the existing note and mortgage of January 20, 1882, as held by S. Younts & Son. (7) That during the spring or summer of 1888 the defendant Samuel Wittkowsky sold and delivered to the defendants J. R. and D. H. Starnes goods to the amount of several thousand dollars, to secure the payment of which the said J. R. and D. H. Starnes, on December 25, 1888, executed and delivered to the said Samuel Wittkowsky their five promissory notes and their mortgage on the tract of land conveyed to them by S. Younts and J. A. Younts by the aforesaid deed of January 20, 1882, and the deed of March 17, 1886. That, there being default in the payment of said notes and mortgage, the said Wittkowsky, on March 29, 1892, instituted proceedings to foreclose said mortgage, and obtained a decree of foreclosure; and at the sale ordered by the court, on December 5, 1892, became the purchaser of the said tract of land, and received sheriff's titles for the same. That it is by virtue of these foreclosure proceedings that the defendant Samuel Wittkowsky claims...

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8 cases
  • James v. Martin
    • United States
    • United States State Supreme Court of South Carolina
    • April 4, 1929
    ...even though said judgment was out of the line of the Lillie R. Martin title. To sustain this contention, he cites Younts v. Starnes, 42 S. C. 22, 19 S. E. 1011; Van Diviere v. Mitchell, 45 S. C. 127, 22 S. E. 759; Armstrong v. Carwile, 56 S. C. 463, 35 S. E. 196. "In Younts v. Starnes, firs......
  • James v. Martin
    • United States
    • United States State Supreme Court of South Carolina
    • April 4, 1929
    ...Martin, even though said judgment was out of the line of the Lillie R. Martin title. To sustain this contention, he cites Younts v. Starnes, 42 S.C. 22, 19 S.E. 1011; Van Diviere v. Mitchell, 45 S.C. 127, 22 S.E. Armstrong v. Carwile, 56 S.C. 463, 35 S.E. 196. "In Younts v. Starnes, first c......
  • Enterprise Bank v. Federal Land Bank of Columbia
    • United States
    • United States State Supreme Court of South Carolina
    • May 12, 1927
    ...for the appellants appear to concede that under the cases of Van Diviere v. Mitchell, 45 S.C. 127, 22 S.E. 759, and Younts v. Starnes, 42 S.C. 22, 19 S.E. 1011, first proposition announced by the circuit judge, that the Talley mortgage having been on record since February 9, 1921, prior to ......
  • Enter. Bank v. Fed. Land Bank Of D.C.
    • United States
    • United States State Supreme Court of South Carolina
    • May 12, 1927
    ...for the appellants appear to concede that under the cases of Van Diviere v. Mitchell, 45 S. C. 127, 22 S. E. 759, and Younts v. Starnes, 42 S. C. 22, 19 S. E. 1011, the first proposition announced by the circuit judge, that the Talley mortgage having been on record since February 9, 1921, p......
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