Supreme Court of South Carolina, 1926

Allgood v. Allgood

Supreme Court of South Carolina · Decided January 28, 1926 · No. 11911 · Watts, Ramage, Cothran, Purdy, Gary

132 S.E. 48; 134 S.C. 233; 1926 S.C. LEXIS 28 (South Eastern Reporter)

Counsel

Messrs. Carey Carey, Watkins Prince , and Dean, Cothran Wyche , for appellants, cite: Deed to person not living void: 115 S.E., 114; 97 S.E., 854; 50 S.E., 961; 38 S.E., 827; 113 Ga. 210 ; 84 A.S.R., 233; 23 S.E., 428 ; 73 Am. Dec., 543; 1 Devlin on Real Estate, 3rd Ed., 273. Mortgagee holds legal title to lien created by mortgage: 12 S.C. 488 . Mortgagor and mortgagee necessary to valid mortgage: 27 Cyc., 1041; 19 R.C.L., 289. Mortgage must be delivered: 19 R.C.L., 280. Voluntary instrument not subject to reformation: 115 S.C. 67 . No relief granted for mistake of law: 57 S.C. 386 ; 35 S.E., 733 ; 40 S.C. 92 ; 36 S.C. 569 ; 26 S.C. 41 ; 20 S.C. 317 ; 6 S.C. 485 . Cases distinguished: 113 S.E., 78 ; 109 S.E., 148 ; 107 S.E., 320; 116 S.C. 97 ; 115 S.C. 452 ; 44 S.C. 22 . 2 Brev., 360; McM. Eq., 495. Messrs. Martin Blythe and Craig Keith , for respondent, cite: Exceptions on appeal: Rule 5 of Supreme Court, 1922, Sec. 6. Improper exceptions not considered: 125 S.E., 641 ; 124 S.C. 458 ; 117 S.E., 735 ; 123 S.C. 360 . Questions not passed on by Circuit Court and not covered by exception, not heard on appeal: 115 S.C. 469 ; 106 S.E., 470 . Unrecorded mortgage valid against unsecured creditor: 125 S.C. 332 ; 118 S.E., 290 . Voluntary conveyance: 8 Words Phrases, 7345; 4 Words Phrases,, 2nd Series, 1203; Washburn on Real Property, 3rd Ed., 320. Pre-existing indebtedness as valuable consideration: 39 S.C. 146 ; 43 Neb. 224 ; 47 A.S.R., 753. Preferences by insolvent debtors: 126 S.C. 88 ; 43 Neb. 224 ; 47 A.S.R., 753; 12 R.C.L., 572.

Opinion of the Court

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 *Page 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; 154 Ga. 686; Devlin on Real Estate (3rd Ed.), 273. Hunter v.Watson, 12 Cal., 363; 73 Am. Dec., 543. Neal v. Nelson,23 S.E., 428; 117 N.C. 393; 53 Am. St. Rep., 590; 27 Cyc., 1041. Bank v. Dondna, 7 Ohio Dec. Reprint, 532; 19 R.C.L., 280, 289.

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, 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 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. *Page 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.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.