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October 30, 1956


The opinion of the court was delivered by: Taylor, Justice.

October 30, 1956.

This appeal comes from the Court of Common Pleas for Darlington County where appellant brought an action to foreclose a mortgage of real estate. The defendant, respondent, pleaded payments to Samuel Want, who it is alleged was plaintiff's agent authorized to receive same. Judge Lewis, before whom the case was tried, found for the defendant on the issue of agency, held that the mortgage obligation had been paid in full, and ordered the mortgage cancelled of record. From that decree comes this appeal which will be determined by resolving the question of whether or not the evidence preponderately established Mr. Want's agency.

Except where the facts have been settled by a jury, whose verdict has not been set aside, it is the duty of this court in equity cases to review challenged findings of fact as well as matters of law. Const. 1895, Article V, Section 4; Bates v. Bates, 213 S.C. 26, 48 S.E.2d 612; Little v. Little, 215 S.C. 52, 53 S.E.2d 884; Gilbert v. McLeod Infirmary, 219 S.C. 174, 64 S.E.2d 524, 24 A.L.R.2d 60. But such duty on our part does not require that we disregard the findings below, or that we ignore the fact that the trial Judge who saw and heard the witnesses is in better position than this court to evaluate their credibility; nor does it relieve the appellant of the burden of convincing this court that the trial Judge committed error in his findings of fact. Cogswell v. Cannady, 135 S.C. 365, 133 S.E. 834.

On December 31, 1952, respondent Harrison executed and delivered to Darlington County Bank & Trust Company his promissory note in the amount of $2,500.00 payable in ten consecutive quarterly installments of $250.00 each, the first being payable on March 31, 1953, together with interest on the principal balance remaining from time to time unpaid, at the rate of 6 per cent per annum, payable quarterly, from the date of the note. On the same date, as security for its payment, he executed and delivered to the said bank his mortgage of certain real estate in Darlington County. The note and mortgage provided that default in the payment of interest, or of any installment of principal, should render the whole amount of the obligation immediately due and payable at the option of the mortgagee; and further provided that the obligor should have the right "to pay the whole of the said indebtedness, or any part thereof in excess of the payments hereinabove stipulated, on any installment paying date." The mortgage was recorded on January 3, 1953.

The late Samuel Want, Esq., a prominent attorney of Darlington, was engaged extensively in handling loans on real estate; and at the time mentioned was President of Darlington County Bank & Trust Company. Mr. Harrison testified that he went to Mr. Want to borrow the money in question, and that the mortgage above mentioned was executed in Mr. Want's law office. On February 3, 1953, the said note and mortgage were assigned by the bank, without recourse, to the appellant Twitty. Thereupon the amount of the obligation was charged on the bank's records to the account of "Samuel Want, Attorney"; and opposite the ledger entry of the transaction appears a notation in the handwriting of Mr. D.W. Horton, then Cashier: "Taken up by Mr. Want," and another, also in Mr. Horton's handwriting, "Transferred to Martha W. Twitty." Mr. Horton testified that he made the first of these notations on February 3, 1953, and the other at some later date.

Mrs. Twitty testified that the consideration for the assignment to her was the full amount of the obligation as of February 3, 1953, and that this consideration was paid by her cancellation of a prior mortgage which she held over the same property, and by her check for the difference between the balance owing her on the old mortgage and the amount of the new mortgage obligation, this check being in the amount of $1,563.34, dated February 7, 1953, drawn on her savings account in the Citizens Bank of Darlington, and made payable to the order of "Mr. S. Want."

The prior mortgage of Harrison to Twitty was dated September 22, 1951, and was in the amount of $2,250.00, payable $250.00 on the 22nd day of each third month, for twenty-one months, with a final payment of $500.00 two years from date, and interest was at 6 per cent, payable quarterly. This mortgage appears to have been originally made out to Darlington County Bank & Trust Company, and to have been purchased by Mrs. Twitty on November 21, 1951. Mr. Want's ledger record of the mortgage shows the following payments of principal and interest made by Harrison:

"12/22/51            Principal — Paid by          $250.00
                     Interest Harrison              33.75
  250 retained on investment
  22.13 int. deducted from $30 due
  Mrs. Twitty — $7.87 Rem.
3.75 to S.W.
  3/19/52            Principal — Paid by          $250.00
                     Interest Harrison              30.00
  6/19/52            Principal — Paid by           250.00
                     Interest Harrison              26.25
  9/20/52            Principal                     500.00
                     Interest                       22.50
 12/24/52            Principal                     250.00
                     Interest                       15.00
                     Balance principal            $750.00
                     Paid in full and rem."
   In reference to the mortgage here involved, Mrs. Twitty
testified that on January 7, 1953, she told Mr. Want "that
I am leaving the decision in regard to the Harrison mortgage
in your judgment." She also testified that she received
from Mr. Want three checks payable to her order, of the
dates, in the amounts and bearing notations, as follows:
"April  1, 1953, $287.50, G.M. Harrison, Prin.   $250.00
                                         Int.      37.50
 June  30, 1953,   33.75, G.M. Harrison, Int.
 July  10, 1953,  250.00, G.M. Harrison, Prin."
Mr. Want's ledger record shows the following payments to him by Harrison:
"4/ 2/53, Pd. by Harrison, Prin. $250.00
                           Int.    37.50 3 Mos.
 6/30/53, Pd. by Harrison, Int.    33.75
 7/10/53, Pd. by Harrison         250.00
 9/25/53, Pd. by Harriston to
                 S. Want         2030.00
 Balance prin.   2,000.00
         Int.       30.00"
It is undisputed that the payment of $2,030.00 above referred to was not remitted by Mr. Want to Mrs. Twitty.

Mrs. Twitty testified that Mr. Want had made collections on the Harrison mortgages and on other mortgages in which he had invested money for her, and had remitted such collections, of both principal and interest, to her; but she denied that he was her agent, and testified that she thought he was sending such payments to her as a matter of convenience for the borrowers, his clients. From the time of the delivery of the note and mortgage to her, in February, 1953, she kept them in her safe deposit box in the Citizens Bank of Darlington, and at no time after delivery to her were they in Mr. Want's possession. She had known Mr. Want for quite a long time and occasionally wrote him with regard to his making investments for her. He was very kind and helpful, but she never considered him her agent. At no time did she have any business dealing directly with Mr. Harrison until February 15, 1954, after Mr. Want's death, when she wrote him requesting that future payments on the mortgage obligation be made to her. At the time of the delivery to her of the note and mortgage there appeared on the assignment a notation of its having been recorded; and through this notation diagonal lines had been drawn and a marginal note written by the Clerk of Court reading "Assignment entered in error." This notation and marginal note had been made without her knowledge or authority. The assignment was subsequently recorded on February 12, 1954.

Upon cross-examination, appellant testified in part as follows:

"Q. Did you ever give Mr. Want authority to collect any mortgage payment for you? A. Not that I — you mean in writing?

"Q. Or orally, either one? A. Well he — I ...

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