132 S.E. 48 | S.C. | 1926
Lead Opinion
The opinion of the Court was delivered by
This is an appeal from a decree of Hon. S. T. Lanham, Special Judge. His decree recites the facts of the case, and will be reported.
The exceptions, 21 in number, challenge the correctness of his decree. One group of exceptions maintain that, when a mortgage is executed in favor of one then deceased, and that fact is known to the mortgagor and to all others interested therein, such mortgage is void and incapable of enforcement; and that, when a mortgage is given voluntarily, and without the consideration therein
The mortgage could have been given to the executors, but was not. It is not such a case under the facts as a Court of Equity should reform and allow the executors to get the benefit of the mortgage which is void.
It was the intent of John E. Allgood, who was hard pressed and subsequently went into bankruptcy, to practically convey all of his property to- the executors of his father as a preference in violation of Section 5511, Civ. Code, and the decisions of this Court. Wilkes v. Walker, 22 S. C., 108; 53 Am. Rep., 706. Putney v. Friesleben, 11 S. E., 337; 32 S. C., 496. Porter v. Stricker, 21 S. E., 635; 44 S. C., 189; and Marion v. Weston, 119 S. E., 582; 126 S. C., 65.
There is no doubt that Allgood was trying to secure a debt due his father’s estate by giving a mortgage to his father of his entire property so' that his own people should profit thereby to the exclusion of the general creditors.
The mortgage given was void in the first instance, and, if it was not, then it was in violation of the Assignment Statute.
The decree of Judge Ranham is reversed as to the mortgage given by Allgood to his father, and the next mortgage is entitled to foreclosure and the proceeds of sale therefrom.
Lead Opinion
January 28, 1926. The opinion of the Court was delivered by This is an appeal from a decree of Hon. S.T. Lanham, Special Judge. His decree recites the facts of the case, and will be reported.
The exceptions, 21 in number, challenge the correctness of his decree. One group of exceptions maintain that, when a mortgage is executed in favor of one then deceased, and that fact is known to the mortgagor and to all others interested therein, such mortgage is void and incapable of enforcement; and that, when a mortgage is given voluntarily, and without the consideration therein *250
expressed, and without a valuable consideration of any kind, such mortgage is incapable of reformation in equity. Those exceptions must be sustained under the rule expressed in 8 R.C.L., 951. Handy v. Handy, 115 S.E., 114;
The mortgage could have been given to the executors, but was not. It is not such a case under the facts as a Court of Equity should reform and allow the executors to get the benefit of the mortgage which is void.
It was the intent of John F. Allgood, who was hard pressed and subsequently went into bankruptcy, to practically convey all of his property to the executors of his father as a preference in violation of Section 5511, Civ. Code, and the decisions of this Court. Wilkes v. Walker,
There is no doubt that Allgood was trying to secure a debt due his father's estate by giving a mortgage to his father of his entire property so that his own people should profit thereby to the exclusion of the general creditors.
The mortgage given was void in the first instance, and, if it was not, then it was in violation of the Assignment Statute.
The decree of Judge Lanham is reversed as to the mortgage given by Allgood to his father, and the next mortgage is entitled to foreclosure and the proceeds of sale therefrom.
MR. ACTING ASSOCIATE JUSTICE C.J. RAMAGE concurs.
MR. JUSTICE COTHRAN and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur in result. *251
MR. CHIEF JUSTICE GARY did not participate.
MR. JUSTICE COTHRAN: I concur in result, preferring to reserve my opinion upon the question of reformation. I am inclined to think that, if the agreement to execute a mortgage to secure Allgood's debt to the estate had been otherwise valid, the erroneous naming of the dead man as mortgagee could properly have been corrected by reforming the mortgage so as to name the executors as mortgagees; the agreement having been made with them, and the mortgage delivered to, and recorded by them. I agree to the conclusions as to the other questions.
Concurrence Opinion
: I concur in result, preferring to reserve my opinion upon the question of reformation. I am inclined to think that, if the agreement to execute a mortgage to secure Allgood’s debt to the estate had been otherwise valid, the erroneous naming of the dead man as mortgagee could properly have been corrected by reforming the mortgage so as to name the executors as mortgagees; the agreement, having been made with them, and the mortgage delivered to, and recorded by them. I agree to the conclusions as to the other questions.
