Opinion
13363
March 9, 1932.
Before SEASE, J., Sumter, October, 1928. Affirmed.
Suit by Bessie S. Wilson against Floy M. Muehlberger and another, executrix and executor of the will of W.B. Wilson and as trustees under the same. Decree for plaintiff and defendants appeal.
The decree of the Circuit Judge, requested to be reported, follows:
DECREE OF JUDGE SEASEThis suit was brought by the plaintiff against the defendants as executrix and executor of, and trustees under, the will of W.B. Wilson, deceased, the former husband of the plaintiff, to recover upon a predivorce agreement between Bessie S. Wilson and W.B. Wilson and the decree of divorce granted by the Courts of Florida. The cause heretofore went to the Supreme Court upon a demurrer to the first cause of action in the complaint, and the same was sustained with leave to amend. Wilson v. Wilson, 158 S.C. 425, 155 S.E., 627. In accordance with the opinion of the Supreme Court, the first cause of action was amended to seek an accounting on the part of the defendants for the sale of certain lands in Manatee County, Fla., and for judgment for whatever amount the plaintiff may be found entitled to, and to have this judgment declared a lien against the estate of W.B. Wilson in accordance with law under the terms of the aforesaid predivorce agreement. The second cause of action is for the recovery of alimony under the same agreement. I tried the case in open Court at Sumter, S.C. on April 9, 10, and 11, 1931, upon the oral testimony adduced before me, the voluminous documentary evidence, and some depositions which had been taken in Florida. The case was fully argued by counsel for the respective parties.
The plaintiff Bessie S. Wilson and W.B. Wilson were married in South Carolina on the 22nd day of March, 1904, and continued in the matrimonial relationship until some time in the year 1922. During the latter part of their married life they lived in the City of Tampa, County of Hillsborough, State of Florida. The plaintiff owned a home at Plant avenue, in the City of Tampa, upon which there were two mortgages amounting in the aggregate to something over $10,000.00. Her husband, W.B. Wilson, at that time owned certain lands in Manatee County, Fla., which will be hereinafter referred to as the Manatee County land. The title to this land was in the name of his father, Thomas Wilson, a widely known and highly respected citizen of South Carolina. However, the title was held by him merely as security, and was in legal effect a mortgage, as appeared from the admission of all parties and the subsequent decree of Court. W.B. Wilson desiring, no doubt, to facilitate the sale of this property, executed on March 30, 1922, to Sumter Trust Company, a South Carolina corporation having its principal place of business at Sumter, S.C. and of which I.C. Strauss, Esq., of Sumter bar, was president, a deed in fee simple for the Manatee County land upon certain trusts therein stipulated his wife, Bessie S. Wilson, joining with him in the execution of this deed pursuant to the Florida law. The trusts set forth in this deed were that the property should be sold for such consideration and upon such terms as the trustee might deem proper, and that out of the proceeds of sale there should first be paid all expenses relating to the settlement of any liens or adverse claims, including the expenses incurred in caring for the lands or in marketing and selling the same; and then and next to pay the indebtedness due by W.B. Wilson to the estate of Thomas Wilson in connection with the said property; and also upon the further trusts specified in the following excerpts from the deed:
"Fourth: In trust further, if the remaining proceeds be sufficient, to pay off and discharge a certain mortgage executed to A.A. Cerf securing an indebtedness of $6,000.00 with accrued interest, if any, said mortgage covering the residence property of Bessie S. Wilson, consisting of lots known as Denham and Driscoll properties, located on Plant avenue in the City of Tampa, in the State of Florida, and to pay off and discharge a certain further and second mortgage on the said premises executed to Elizabeth Wilson to secure the sum of $4,000.00 and interest, and in trust further to pay the taxes upon the last mentioned premises for the years 1922 and 1923, if the said premises are held by the said Bessie S. Wilson during said years; if the said premises not so held and owned by her, then the provision herein made for the payment of said taxes is hereby rescinded and it is expressly stipulated and William B. Wilson reserves the right to pay off and discharge the said two mortgages independently of the trusts herein and hereby created, and if the same be paid off and discharged by him from any other source or in any other manner than the trusts herein and hereby created with respect thereto, then the trusts herein and hereby provided for the payment of said mortgages are thereby terminated and ended and the trustee shall be under no further obligation with respect to the payment of said mortgages or said taxes.
"Fifth: In trust further, upon the completion of the payments above referred to pay to me, William B. Wilson, or to my personal representatives, any surplus proceeds of sale."
This deed was executed before any proceedings for divorce had been instituted or even thought of, so far as the evidence discloses. It will be observed from the terms of the trust deed that W.B. Wilson evidently intended to pay the two mortgages above referred to which were incumbrances on the home, the title to which was in his wife, and that he also intended to pay the taxes on this property for the years 1922 and 1923.
Some time after the foregoing deed was executed, Mrs. William B. Wilson determined to institute divorce proceedings against her husband, and there were negotiations between the parties as to alimony which resulted in a written agreement executed by them dated June 15, 1922, and recites the intention on the part of Bessie S. Wilson to file a bill for divorce in the Circuit Court of Hillsborough County, Fla., and that the parties had mutually agreed upon a property settlement in lieu of alimony in the event that the Court should hold that Bessie S. Wilson was entitled to a decree of divorce. The agreement then stipulates that W.B. Wilson shall pay to Bessie S. Wilson upon the 1st day of each and every month subsequent to the date of the decree the sum of $100.00, which she agreed was satisfactory and sufficient for her support and maintenance, and that she would accept the same in full of all claims for support, maintenance, and alimony. The agreement further provided that the monthly payments should be made until the sale of either the Manatee County land or certain other property therein specified, and the payment by W.B. Wilson to Bessie S. Wilson of one-third of the net proceeds accruing to him from the sale of either of the properties mentioned which should first be made. The Manatee County land was first sold, so we are not concerned with the other property. The agreement further provided that the net proceeds of sale should be such sum as W.B. Wilson should receive therefrom "after deducting from the gross sales price all expenses of sale, taxes, carrying charges and liens and encumbrances which are a specific lien upon the property sold or any part thereof." It was also provided that upon payment of such one-third of the net proceeds, the monthly payments of $100.00 should be discontinued, and Wilson should be held to have made full settlement of all claims of support, maintenance, or alimony, and would be entitled to a release. There was a further stipulation that to secure the payment of such one-third of the net proceeds of the sale, W.B. Wilson agreed that he would make no change in his will as then drawn, in which his wife was named as the principal beneficiary. In this connection, it will be noted that the Supreme Court held that the stipulation just referred to as to not changing the will was intended merely by way of security. W.B. Wilson did subsequently revoke his former will by the execution of a later one mainly in favor of his second wife; and the defendants in the present cause are his legal representatives under this last will.
By decree dated September 14, 1922, and duly entered on the records of the Circuit Court for Hillsborough County, Fla., the plaintiff, Bessie S. Wilson, was granted a divorce from her husband, W.B. Wilson, and the terms of the predivorce agreement were embodied in the decree of divorce. The intent and meaning of the decree were to carry into effect the agreement, although there are some slight changes in phraseology. It provides, as specified in the agreement, for the payment of the sum of $100.00 monthly, and that such payments shall continue until the sale of the property above referred to; and further provides: "And upon the sale of either of the said properties, then the said W.B. Wilson, defendant, pay to the said Bessie S. Wilson, complainant, one-third of the net proceeds accruing to the time the sale of either of the parcels of property above described and first sold, and which said payment shall be made by the defendant and accepted by the complainant, in full satisfaction and payment of all claims or demands for alimony, maintenance or support, and the said defendant, W. B. Wilson, upon the making of said payment, to be released from the obligation of this decree requiring him to pay the sum of $100.00 monthly. That upon the payment of the said sum, the property mentioned in this decree be released from any lien of the complainant, and the said sum of one-third of the net proceeds shall be one-third of the sum the defendant W.B. Wilson shall receive from such sale, after deducting from the proceeds of the said sale all expenses of sale, taxes, carrying charges, and liens and encumbrances, which may be levied upon the property, from the proceeds of which the said payment shall be made."
In the meantime, Sumter-Trust Company was negotiating for the sale of the Manatee County land, and it appearing that under the laws of Florida there might be some doubt as to the validity of the holding of the title by Sumter Trust Company, since it was a foreign corporation, a deed from the same property dated August 10, 1922, was executed by W.B. Wilson and his wife, Bessie S. Wilson, to Mr. Strauss, individually, in fee-simple. This deed contained no reference to any trust, but in accordance with the intention of the parties to the transaction, Mr. Strauss executed and delivered a written declaration of trust showing that he held the property upon the same trusts as those expressed in the deed to Sumter Trust Company dated March 30, 1922, and it will be remembered that under the terms of that deed it was contemplated that W.B. Wilson should himself pay off the mortgages on his wife's property and certain taxes thereon. So this was confirmed by the deed to Mr. Strauss which was executed some time after the predivorce agreement.
Sumter Trust Company succeeded in effecting a sale to the Edge-Howard Company of the Manatee County land. This land contained 10,230.77 acres, and was sold at the rate of $13.00 per acre. The transaction was consummated on November 15, 1922, upon the payment of the purchaser of $27,069.43 in cash, and the balance in notes secured by purchase-money mortgage, the deferred payments bearing interest at the rate of 6 per cent. per annum. The cash payment included $2,069.43, interest from date of the contract to the date of closing. Mr. Strauss, as president of Sumter Trust Company, went to Tampa, Fla., for the purpose of closing up this transaction. Upon examination of the records of Hillsborough County, he became acquainted for the first time with the terms of the divorce decree, and finding the stipulations of record with reference to the proceeds of the sale of the Manatee County land, it occurred to him that perhaps the purchaser might raise some objection in case this matter was not disposed of Mr. Strauss was also under the impression that the amount of the mortgages on Mrs. Wilson's home, together with the taxes, would have to come out of her one-third share of the net proceeds of the sale of the Manatee County land under the provisions of the divorce decree, but he was the attorney for Mrs. Elizabeth Wilson, the mother of W.B. Wilson, and according to his testimony she had agreed to see that these mortgages were paid and canceled without waiting for the collection of a sufficient amount from the sale for that purpose. And Mr. Strauss also appears to have reached the conclusion that after deducting from the proceeds of sale all liens, incumbrances, and other charges, there would be nothing coming to W.B. Wilson, and that there was no way Mrs. Wilson's mortgages could be paid except through Mrs. Elizabeth Wilson; and finding that E.V. Whitaker, Esq., a reputable attorney of Tampa, had represented Mrs. Bessie S. Wilson in the divorce proceedings, he called on Mr. Whitaker and explained the matter to him, requesting that he have Mrs. Wilson come to his office. Mr. Whitaker declined to do this, however, giving as his reason that he had only represented Mrs. Wilson in the matter of the divorce, which had been concluded. Thereupon, to wit, November 17, 1922, Mr. Strauss called upon Mrs. Wilson, and discussed the matter with her. Eliminating all conflicting testimony, it is admitted that he told her in effect that there would be nothing coming to W.B. Wilson out of the proceeds of sale, and that there was no source from which her mortgages could be paid except through Mrs. Elizabeth Wilson as above stated; and he submitted to her the proposed release, which recited that W.B. Wilson had no equity in the Manatee County property, and that this was a fact well known to Bessie S. Wilson. She immediately disclaimed the knowledge imputed to her, and this cause was stricken out. The release was then executed, the same referring to the predivorce stipulation and the decree, and reciting that at the time the stipulation was made W.B. Wilson had no equity in the property therein mentioned, and further reciting that Mrs. Elizabeth Wilson, the mother of W.B. Wilson, through her attorney, I. C. Strauss, Esq., had promised to satisfy or cause to be satisfied the two mortgages covering Mrs. Bessie S. Wilson's property known as 354 Plant avenue, Tampa, Fla. The agreement further recited that Bessie S. Wilson agreed that if these mortgages were cancelled, she would be entirely satisfied, and that the said two mortgages having been paid and discharged, and the said sum of $100.00 per month under the divorce decree having been paid to her on that day, she made no further claim or demand against the property referred to in the stipulation and decree, and released and assigned unto Elizabeth Wilson all her rights to any settlement in money of property under the divorce decree.
It appears from the testimony that Mr. Strauss told Mrs. Wilson at the time she signed this paper that it was informal (and there being no notary public readily available, the same was not acknowledged), but that she should call at the office of C.C. Whitaker, Esq., of the law firm of Whitaker, Himes Whitaker, of Tampa, and she would receive the canceled mortgages, whereupon she would execute a formal release. Mrs. Wilson testified that her recollection was that she went to the office of C.C. Whitaker, Esq., on the day after the visit to Mr. Strauss, and she rather had the impression that she executed the formal release on that day, although, on the other hand, she had some recollection of Mr. Whitaker's asking her to call again. The formal release was in fact executed some time later, as will hereafter appear.
After Mr. Strauss returned to his home in Sumter, he received a letter from Mrs. Wilson in which she complained that he had greatly misrepresented the matter to her, and there followed some correspondence between them. She demanded the return of the paper, but Mr. Strauss declined to comply with her request, giving in detail an explanation of his position. The misunderstanding between Mr. Strauss and Mrs. Wilson is regrettable, but without any reflection whatever upon her, the Court finds that there was not the slightest degree of fraud on the part of Mr. Strauss, and that his connection with the transaction was characterized by the utmost good faith. Indeed, as an evidence of his scrupulous regard for fair dealing, he first conferred with the attorney who had represented Mrs. Wilson in the divorce proceedings. Hence, any and every charge of fraud is eliminated from the case.
Not only was there the correspondence between Mrs. Wilson and Mr. Strauss above referred to, but Mrs. Wilson informed her former husband, W.B. Wilson, of the execution of the paper in question, and there was an exchange of several letters between W.B. Wilson and Mr. Strauss in regard to the matter. Mr. Wilson very emphatically took the position that he was vitally concerned in any matter relating to his compliance with the predivorce agreement and the decree, and indicated his disapproval of what had been done. It will be borne in mind that while Mr. Strauss was president of Sumter Trust Company and hence its authorized representative, and was the attorney for Mrs. Elizabeth Wilson, and authorized to represent her, he was not empowered to represent W.B. Wilson as attorney or agent in any matter pertaining to the transactions between W.B. Wilson and his former wife, Bessie S. Wilson. Furthermore, if Mr. Strauss' understanding of the agreement was erroneous, Bessie S. Wilson and W.B. Wilson ought not to be bound thereby.
At the interview between Mr. Strauss and Mrs. Wilson, she called his attention to the fact that she understood that in addition to the payment of the taxes on her home for the years mentioned in the trust deed, the fire insurance premiums thereon were also to be paid, and Mr. Strauss agreed that they would be paid, although not mentioned in the trust deed. Mr. Wilson confirmed Mrs. Wilson's understanding of the matter with reference to the insurance by his letter to Mr. Strauss, dated January 18, 1923. The two mortgages and the taxes and insurance premiums were all paid out of the cash payment received for the Manatee County lands, and were not paid by Mrs. Elizabeth Wilson. But attention is directed by the defendants to the fact that under the terms of the trust deed liens and incumbrances and the indebtedness to Thomas Wilson were first to be paid, and the cash payment was manifestly inadequate for these purposes; and, of course, at that time it could not be known with certainty that the deferred payments would be met, although they were afterwards in due course paid and discharged. Mr. Strauss testified that for the protection of Sumter Trust Company in paying the mortgages referred to, taxes, and insurance, out of the cash proceeds, they had a written indemnity from Mrs. Elizabeth Wilson.
The two mortgages on Mrs. Wilson's home were delivered to her duly satisfied and discharged, and were canceled of record. On the 27th day of January, 1923, at the office of C.C. Whitaker, Esq., she signed the so-called formal release. According to the testimony, this paper was originally prepared by Mr. Strauss, but afterwards revised and rewritten by Mr. Whitaker. It recites briefly the deed of W. B. Wilson and wife to the Sumter Trust Company, the deed to I.C. Strauss, the sale to the Edge-Howard Company, the divorce decree, and that all payments thereunder had been made; and in consideration of the premises Bessie S. Wilson admitted and acknowledged that the Sumter Trust Company had complied with the terms of the deed to it, and this company was released from further liability or accountability to her; and that I.C. Strauss received no personal benefit and he was likewise released from accountability or liability to her. The instrument also contains the following stipulation: "That I do by these presents fully release, satisfy and discharge W.B. Wilson and the Estate of Thomas Wilson from all liability arising by virtue of a stipulation entered into between the said W.B. Wilson and myself prior to said decree of divorce, and do forever release, satisfy and discharge said decree of divorce rendered in that certain suit in the Circuit Court in and for Hillsborough County, State of Florida, brought by me against W.B. Wilson, said decree being recorded in the Public Records of Hillsborough County, State of Florida."
It appears that when this paper was signed, Mrs. Wilson did not understand it. She states that she read it, but did not take it in, which, in view of its rather extensive scope, is not so surprising. But the relation of the parties to this instrument is the same as that to the one signed November 17, 1922, as both are based upon Mr. Strauss' misconception of the situation; and as to neither release was Mr. Strauss (or Mr. C.C. Whitaker) the authorized representative of W.B. Wilson. It should, however, be stated that there is no charge or suggestion that Mr. Whitaker made any misrepresentation.
In order to determine the respective rights and obligations of the parties, it is necessary for the Court to construe the agreement made in anticipation of divorce, and the decree which merely ratified and confirmed it. This agreement must, of course, be interpreted in the light of the surrounding facts and circumstances with a view to giving effect to the intention of the parties, but such intention must be found within the four corners of the written instrument. This cardinal rule of construction needs no citation of authority. Applying it here, it is manifest that the parties intended that some reasonable and fair provision should be made for the support of Mrs. Wilson, and this is why the monthly payment of $100.00 was agreed upon, a very moderate sum in the circumstances. It was expected, no doubt, that the property would soon be sold, and it must have been anticipated that the sale would yield such an amount that one-third of the net proceeds thereof would at least be sufficient to insure Mrs. Wilson an income of not less than $100.00 per month. Otherwise, the agreement would be illogical and inconsistent. It surely could not have been contemplated that the mortgages on Mrs. Wilson's property should be paid out of her one-third share, and thus deprive her of any source from which her living expenses might be obtained. As has already been seen, the trust deed manifests the intent on the part of W.B. Wilson himself to assume and pay these mortgages; and, as will more fully appear from his letters hereinafter quoted from, long after the mortgages had been paid and discharged (including the taxes and insurance), he recognized Mrs. Wilson's right to receive her share of the proceeds of sale. It is unnecessary to draw the ready inferences from the testimony as to why Mr. Wilson considered these mortgages as his own obligations, because the fact that he did so is quite apparent.
Mrs. Wilson received the first two monthly payments of alimony of $100.00 each, that is to say, the payment due October 1, 1922, and the payment due November 1, 1922, the latter amount being paid to her on November 17, 1922, at the time she signed the release above mentioned. She has never received anything more by way of alimony, nor has she ever received anything out of the sale of the Manatee County land, since the mortgages, taxes, and insurance premiums were not deductible from her share. Hence it follows that there was no real consideration for the releases.
In August and September, 1926, nearly four years after the sale of the Manatee County property, W.B. Wilson wrote to Mrs. Wilson letters in which he promised to make payment of her share of the proceeds of this property, claiming at that time that he had never received his share thereof from the estate of his deceased father. In his letter to her dated August 10, 1926, he stated: "I was called on last night by a lawyer from Columbia, who said that he represented you, having been employed to do so by a firm in Tampa, of whom I have never heard. I told him that it was not necessary for you to employ an attorney so far as I was concerned, in reference to your rights under the decree between us, as I would be only too glad if I am able to recover the property in which you have an interest to turn over to you the interest provided for by the decree. You remember the decree provides that you are to have this interest in either the San Carlos property or the Manatee property, whichever is sold first. My equity in the two properties is substantially the same, and the Manatee property was first sold. If I can recover my equity I will settle with you for your proportion of my net recovery."
And in his letter dated September 18, 1926, he says: "In order that there may be no misunderstanding between us as to my attitude towards you in reference to the proceeds of sale of the lands known as the Myakka lands, located in Manatee County, Fla., I now wish to affirm to you that upon recovery of these proceeds from the estate of Thomas Wilson I shall absolutely conform and live up to and perform the stipulation entered into between us dated June 15th, 1922, and the provisions of your divorce decree dated September 14th, 1922."
The defendants contend that these promises of W.B. Wilson are of no effect because they are conditional upon his being able to recover from the estate of Thomas Wilson, but they do clearly recognize his liability, and he would not be permitted to say that he would only be required to pay in case he succeeded in recovering for himself from his fathers' estate. If the plaintiff in the case at bar is entitled to recover, she has a lien on the entire estate of W.B. Wilson to secure her, and is not relegated to any particular source from which she must be paid.
It is also earnestly contended by the defendants that even if the letters of W.B. Wilson be construed as a recognition of liability and an attempt to waive the accord and satisfaction entered into with Mrs. Wilson, they are not effective for that purpose because the original promise being discharged there was no consideration for a new promise, and that accord and satisfaction cannot be abrogated by waiver unless such waiver amounts to estoppel. It is unnecessary to consider whether this statement of the law is correct in all cases, because under the facts and circumstances here it is clear that the alleged accord and satisfaction is of no force or effect; one reason being that W. B. Wilson was not a party thereto through any authorized representative or agent. Where a release has been obtained, or an accord and satisfaction made without the knowledge and consent of one of the parties thereto or his authorized agent, it may, of course, become binding if ratified. But until it is ratified it is not effective, and in the case at bar W.B. Wilson did not ratify the release, but, on the contrary, with full knowledge of the entire situation he expressly waived any right he might have had to avail himself of the benefits thereof. Indeed, the burden was on the defendants to show ratification rather than upon the plaintiff to show waiver. 1 C.J., 535, 538.
Furthermore, it would be inequitable to give effect to the releases because they were without anything more than mere technical consideration and were based upon representations that W.B. Wilson had no equity in the property sold, that is to say, would receive nothing out of it. These representations made in good faith were due to Mr. Strauss' mistaken view of the effect of the agreement between the parties and the surrounding circumstances. While the cases are not entirely consistent, it appears to be well settled that mere misconstruction of a legal instrument standing alone without misrepresentations or the like will not furnish ground for relief, because, as is said in the case of Keitt v. Andrews, 4 Rich. Eq., 349, such misconstruction may be rather an error of the judgment than a mistake either of law or of fact. But in the case at bar there were misrepresentations, and, besides, whether or not W.B. Wilson would realize anything out of the proceeds of the sale was at least a mixed question of fact and law. In such a case equity will treat such a mistake as "analogous to, if not identical with, a mistake of fact." Pomeroy, Equity Jurisprudence, § 840.
We must, therefore, for both reasons above set forth, consider the case as if the releases had never been executed. W.B. Wilson died on October 3, 1927. Under the predivorce agreement and the decree confirming the same, he was liable to pay to Mrs. Wilson alimony of $100.00 per month unless and until the Manatee County property was sold and her share of the net proceeds paid over. So if there were no net proceeds of such sale he was still liable to pay her the alimony, and this liability continued from month to month until his death. 19 C.J., 278. Hence if there is nothing coming to Mrs. Wilson out of the Manatee County land, she is entitled to judgment for alimony with interest on each payment from the date it should have been made at the rate of 8 per cent. per annum, the legal rate of interest in Florida. The unpaid alimony with interest to May 1, 1931, amounts to $8,732.00. I mention this for the reason that the defendants very strenuously urge that there is nothing whatever coming to Mrs. Wilson out of the proceeds of the Manatee County land, and if their contention in this respect is ultimately shown to be correct, it is my opinion that Mrs. Wilson would still be entitled to recover the amount just mentioned on account of alimony.
However, the Court is of opinion that the estate of W.B. Wilson is due Mrs. Wilson a certain sum on account of the proceeds of the sale of the Manatee County land, with interest. The plaintiff contends that since the alimony was not paid, she has the right to recover the same with interest to the date of Mr. Wilson's death, and that she also has the right to recover her share of the proceeds of the sale of the Manatee County land, with interest from the date of Mr. Wilson's death. The Court does not concur with this view.
W.B. Wilson's own declarations as to the amount due him out of the proceeds of the sale of the Manatee County land, if not absolutely binding upon his legal representatives, are entitled to very great weight. On October 8, 1926, he filed a sworn petition in the Court of Common Pleas for Sumter County, S.C. in a suit to recover from the estate of Thomas Wilson the share he claimed of the proceeds of the land sale in question and numerous other items. Attached to this sworn petition is the following statement as to this land:
To amount advances ............ $ 92,097.83 By Jones Howard Mortgage ...... $ 8,320.00 " Geo. Riggin Mortgage ....... 7,723.02 " J.A. Graham Mortgage ....... 6,493.34 " Edge-Howard sale ........... 137,569.43 To estimated expenses, interest, taxes, etc. ................ 30,000.00 Balance due W.B.W. ............ 38,007.96 ___________ ___________ $160,105.79 $160,105.79 It is true that the Court subsequently disallowed all the claims of W.B. Wilson and dismissed his petition upon the ground that he had previously signed a full release and acquittance of the estate of Thomas Wilson. However, such release can have no effect upon the rights of the plaintiff in the case at bar.It will be observed from Mr. Wilson's statement that he claims credit for three mortgages. Howard, Riggin, and Graham. The defendants contend that these mortgages should not be allowed as a credit against the amount W.B. Wilson owed his father, Thomas Wilson, and they introduced evidence showing that when these mortgages were paid W.B. Wilson got at least a part of the money; but W.B. Wilson himself considered these mortgages as constituting a credit upon the Manatee County land lien, and if afterwards any part of the money arising therefrom was advanced to him, he must have regarded this as an independent debt to his father, who, as the testimony shows, frequently rendered financial assistance to his son. At any rate, the legal representative of W.B. Wilson can hardly repudiate the position which he took with full and personal knowledge of all the facts and circumstances.
The foregoing statement of W.B. Wilson shows that an item of $30,000.00 was estimated for expenses, interest, taxes, etc. Since this is an estimate, the defendants here may rightly claim that it should be verified by the facts disclosed by the evidence. It should be borne in mind that perhaps all of the deductions claimed by the defendants were properly chargeable as against W.B. Wilson himself; but in determining the rights of Mrs. Wilson, we must be governed by the express terms of the predivorce agreement and the decree confirming the same. The agreement provides, as already stated, that there shall be deducted "all expenses of sale, taxes, carrying charges and liens and encumbrances which are a specific lien upon the property sold or any part thereof." The decree is the same, except that after the word "encumbrances" the following language is used, "which may be levied upon the property, from the proceeds of which the said payment shall be made." I do not think there is any substantial difference between the agreement and the decree. There can be no doubt whatever that the amount due the estate of Thomas Wilson, with interest, is a proper charge. It is admitted that the original amount of this indebtedness was $92,097.83, to which interest should be added. All taxes on the premises are likewise expressly provided for, and interest should be added to the amounts so paid in previous years. The expenses of sale, such as commissions paid Sumter Trust Company, stamps, and recording, are also proper charges. The defendants contend that various items of attorney's fees should be deducted, but I am of opinion that these are not proper deductions. If the parties had intended to include attorney's fees, I think they would (and should) have been specifically mentioned.
The defendants claim that the item of $7,500.00 paid to Exchange Supply Company on account of a previous alleged option on the Manatee County lands should be deducted. The evidence shows that this amount was paid by way of compromise of an exceedingly doubtful claim. Manifestly it was not intended by the parties to the predivorce agreement that any charge growing out of this alleged option should be deducted, because the claim thereunder had been pending for several months, when this agreement was made, and it is not mentioned in the agreement. Even if this was a proper charge as against W.B. Wilson himself, it should not be deducted so as to affect the interest of Bessie S. Wilson in contravention of the contract. Indeed, until and unless it had been judicially determined that the option was a valid, subsisting claim against the property, it could not be considered either a lien or an incumbrance. To hold otherwise would leave the door open for the sacrifice of Bessie S. Wilson's rights by deducting any amount the parties might have seen fit to pay.
The defendants also claim that there should be deducted the sum of $5,000.00 paid H.L. Anderson, and interest thereon. It appears that Mr. Anderson was an attorney who at one time performed some services for Mr. W.B. Wilson in connection with this property, and that he brought an action at law to recover his fees. The matter was settled before judgment was obtained, and in the meantime, while the law case was pending, Anderson, in accordance with the Florida practice, brought a suit in equity in the nature of a creditor's suit, and in connection therewith filed a lis pendens. I do not think that this is a proper charge. It certainly does not come within the letter of the agreement, nor do I believe that it is within its spirit. It was not contemplated by the parties that any and all of the indebtedness of W.B. Wilson should be deducted, but only specific liens. It is clear that a lis pendens does not create a lien. Tedder v. Tedder, 123 S.C. 346, 116 S.E., 436. Even if the case had gone to judgment, it is doubtful if this could be considered a specific lien, a judgment being a general lien, as stated in the very recent case of Joint Stock Land Bank v. Ins. Co., 160 S.C. 164, 158 S.E., 273, decided April 16, 1931.
It will be noted that in the above statement the proceeds of the Edge-Howard sale are listed as $137,569.43, but included in this amount is $2,500.00 refunded by one Jones. The sale price of the land was $133,000.00, and there was added to this amount interest from the date of the contract to the closing of the transaction, amounting to $2,069.43.
After careful consideration of the matter, I think that the following statement shows the proper deductions. Some small items have been included which I have not discussed, but they seem to come clearly within the terms of the contract. All interest items have been calculated at the rate of 8 per cent. per annum.
RECEIPTSDEDUCTIONS Pro rata taxes, 1922 ................ $ 1,395.00 Revenue stamps and recording ........ 135.00 Paid Sumter Trust Company commissions ..................... 100.00 Principal amount due Thomas Wilson .......................... 92,097.83 Interest from 11-26-19 to 11- 15-22 ........................... 21,878.34 Taxes 1919 .......................... 1,610.00 Interest to 11-15-22 ................ 347.76 Taxes 1920 .......................... 1,681.00 Interest to 11-15-22 ................ 224.82 Taxes 1921 .......................... 2,370.86 Interest to 11-15-22 ................ 108.49 Court costs in suit relating to title 64.32 Paid Geo. Riggin, caretaker ......... 112.84 By balance ...................... 35,478.53 ___________ ___________ $157,605.79 $157,605.79 ___________ ___________ To balance ......................... $ 35,478.93 One-third due Bessie S. Wilson $ 11,826.31 Interest from November 15, 1922 to May 1, 1931 .................. 8,005.05 ___________ Total due Bessie S. Wilson ....... $ 19,831.36 Sale price of land ................. $133,000.00 Interest from date of contract to closing of sale ............... 2,069.43 Howard, Riggin and Graham Mortgages as per statement of W.B. Wilson .................. 22,536.36 In accordance with the foregoing statement, I find that Mrs. Bessie S. Wilson, the plaintiff herein, is entitled to recover the amount above set forth in full settlement of all claims of any and every kind whatsoever under the predivorce agreement and the decree rendered pursuant thereto.
It is therefore ordered, adjudged and decreed that the plaintiff have judgment against the defendants for the sum of $19,831.36, and for the costs of this action; and that this judgment be, and the same is hereby, declared to be a lien against the entire estate of W.B. Wilson; and that the plaintiff have leave to apply at the foot of this decree for such other and further orders as may be necessary or proper for the enforcement of such lien.
Messrs. Epps Levy, for appellants, cite: Lis pendens does not create a lien: 123 S.C. 346. Filing of lis pendens applies in suit to set aside a deed: 35 Fla., 518; 17 S., 633; 27 C.J., 859; 20 C.J., 1252; 37 C.J., 308. Special lien is right to retain property for charge on same property: 37 Cyc., 310. Attorney allowed lien for his fees: 6 C.J., 766; 6 Fla., 214. After contract for sale of land seller holds in trust for buyer: 139 S.C. 481; 53 S.C. 315; 12 Rich. Eq., 343; 11 Rich. 54; 91 S.C. 544. Cannot call upon Courts to protect against own carelessness: 150 S.C. 167; 2 Strob. Eq., 148; 4 Rich. Eq., 349; 67 S.C. 74. Complaint may be amended to seek accounting in equity: 158 S.C. 425; 1 C. J., 604. Interest will be allowed in absence of contract regarding same: 1 N. McC., 45; 4 McC., 392. May seek accounting in equity: 1 C.J., 678; 76 S.C. 180; 11 Rich. Eq., 329; 5 C.J., 604; 2 McCord, 125; 30 S.C. 305; 47 S.C. 176. Lower Court reversed when preponderance of evidence is against finding of that Court: 51 S.C. 36; 55 S.C. 198; 56 S.C. 154; 64 S.C. 27; 115 S.C. 452; 122 S.C. 461.
Messrs. L.D. Jennings and L.D. Lide, for respondents, cite: Burden on appellant to show preponderance of evidence against finding of equity Court: 91 S.C. 473; 100 S.C. 157; 144 S.C. 70. Courts of Equity may inquire into consideration: 24 R.C.L., 697. In equity relief may be granted where representations are made, although not fraudulent: 2 Hill, 657; 93 S.C. 399; 112 S.C. 349. To recover attorney's fees in collection by foreclosure same must be clearly stipulated: 62 S.C. 482. Lis pendens does not create a lien. 123 S.C. 346. Where judgment liquidates a claim and fixes it as of a prior date, interest runs from that date: 33 C.J., 210; 33 C.J., 212; 176 Pac., 715; 37 Fla., 134; 53 A.S.R., 239. Where no accord and satisfaction the matter of consideration for new promise is not material: 20 S.C. 57.
March 9, 1932. The opinion of the Court was delivered by
This cause has been before this Court on two previous occasions. The first time it related to security for costs, and the decision is reported in 158 S.C. 58, 155 S.E., 230, under the title of Wilson v. Muehlberger. The second appeal related to an order sustaining a demurrer of the defendants to the plaintiff's complaint, and the report of the cause will be found in 158 S.C. 425, 155 S.E., 627, under the title of Wilson v. Wilson. The change of title was occasioned by the marriage of the defendant, Floy M. Wilson, to one Muehlberger. Another case between the same parties, which has no bearing upon the issues involved in this cause, is that of Wilson v. Wilson, 153 S.C. 472, 150 S.E., 897.
Following the decision of this Court as to the demurrer ( Wilson v. Wilson, 158 S.C. 425, 155 S.E., 627), the cause was heard in the Court of Common Pleas of Sumter County before his Honor, Circuit Judge T.S. Sease, and the decree was in favor of the plaintiff; from which the defendants have appealed to this Court.
The cause being in equity, it is our duty to review the findings of fact, as well as the legal conclusions, of the Circuit Judge, keeping in mind, however, the rule, repeatedly announced, that it is incumbent on the appellants to satisfy this Court that the trial Judge committed error in his findings of fact.
A careful examination of the record has not convinced us of any error in any finding of fact on the part of the Circuit Judge, and we are entirely satisfied with his legal conclusions.
The decree appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.