Jennings v. Hare

47 S.C. 279 | S.C. | 1896

The opinion of the Court was delivered by

Mr. Justice Gary.

This action was commenced on the 12th day of June, 1895, to foreclose two mortgages on the house and lot described in the complaint. The facts are fully stated in the report of the master, which will be set out in the report of the case, and it is only necessary to refer to it for a proper understanding of the questions raised by the exceptions. When the case was heard by his Honor, Judge Benet, he overruled all the exceptions to the master’s report except the plaintiff’s first exception, which was as follows: “Because the master in said report recommended that in case the premises in question are sold, as therein provided, that the sum of $122.05 be paid to the defendant, Florence S. Hare, out of the proceeds of such sale, and balance applied to plaintiff’s debt; whereas he should have recommended that, as the plaintiff was a purchaser of said notes and mortgages without notice of any equitable lien of the defendant, Hare, that the proceeds of such sale should have been applied first to plaintiff’s debt, in preference to the claim of the defendant, Hare.” After sustaining this exception, his Honor, Judge Benet, ordered a sale of the premises, and concluded his order as follows: * * * “That out of the proceeds of said sale, the said master deduct the amount of his fees and expenses on said sale, and any lien for taxes or assessments, and that he then pay the plaintiff the amount found due him, and the costs of this action, said sum to bear interest from the date of said report, and if any balance should remain in his hands after such payments, that he do then pay the same to the defendant, Florence S. Hare, or her attorney, or her legally appointed guardian. In the event the proceeds of sale be insufficient to pay tire debt of plaintiff, the plaintiff shall be entitled to no judgment against W. C. Black for such deficiency, and so much of the master’s report as gives judgment for such deficiency, be overruled.” The defendant, Florence S. Hare, appealed from said decree, upon exceptions which, together with the additional grounds upon which the respondent, W. C. Black, gave notice he would ask this Court to sustain said decree, will be set out in the report of the case.

The exceptions raise substantially but three questions, to wit: 1st. Was the Circuit Judge in error, when he adopted the mode by which he ascertained the rental value of the premises? 2d. Was the Circuit Judge in error, when he decreed that the plaintiff’s debt should be paid out of the proceeds of sale, prior to the claim of the defendant, Florence S. Hare? 3d. Was the Circuit Judge in error, in not decreeing that Florence S. Hare should have a personal judgment against W. C. Black for any deficiency remaining unpaid of her claim, after exhausting the proceeds of sale of said premises?

We will consider the questions raised by the exceptions in the order above stated, and proceed to a consideration of the first question. John H Hare paid Bramlett & Barnett on account of material that went into the building in question, $119.13, and Thomas Butler for work done on the same, $18, aggregating $137.13. The appellant contends that as the house and lot and improvements altogether cost $1,311.70, and W. C. Black only contributed $1,174.57 of said amount, she should not be held to account for the full rental value of the premises, but only in the proportion which $1,174.57 bears to $1,311.70, and that the rental value should be reduced in the proportion which $137.13 bears to $1,311.70. When the defendant, Florence S. Hare, arrived at the age of maturity, she had the right either to confirm or rescind the agreement which she entered into with the defendant, Black. She made her election to rescind, the effect of which was to relieve her of her obligation, and to vest the title to the house and lot in Black. Black did not receive any benefit from the payment to Bramlett & Barnett of the $137.13 by John H. Hare until Florence S. Hare, by making her election to rescind her agreement with Black, vested the title to the house and lot in Black. This was a voluntary act on her part, and she will not be allowed now to say that when the agreement was rescinded, it did not have the effect of vesting title in Black, freed from all claims and equities touching the rental value of said property. The exceptions raising the first questions are overruled.

We come next to a consideration of the second question. The master finds that the amounts received by the defendant, Black, aggregating $396, were paid by John H Hare out of his own means. There is no exception before us raising a question as to this finding, and it must, therefore, be accepted as true. If the money paid to Black had been the property of Florence S. Hare, then this case would be governed by the principle established in Scott v. Scott, 29 S. C., 414, and her claim would have priority over that of the plaintiff in the distribution of the proceeds arising from the sale of said property. The payments made to Black by John L. Hare did not have the effect of vesting Florence S. Hare with the ownership of the money. ^ The effect of the payments was to extinguish her indebtedness, but when she made her election, by which the agreement was rescinded, and the parties, as far as possible, restored to the status qtto, we do not see how she can set up a claim to the money with which the payments were made, when it never belonged to her. Florence S. Hare, .by her voluntary act in rescinding the agreement, prevented herself from getting the benefit of payments made in her behalf by a third person with his own money. The exceptions raising the second question are also overruled.

The third question is disposed of by what has been said touching the second question; and the exception upon which it was predicated is likewise overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.