From Casetext: Smarter Legal Research

Beckwith et al. v. McAlister et al

Supreme Court of South Carolina
Jan 3, 1934
171 S.C. 344 (S.C. 1934)

Opinion

13743

January 3, 1934.

Before GRIMBALL, J., Abbeville, November, 1932. Affirmed.

Action by Lawrence Butler Beckwith and others, infants, by their guardian ad litem, C.A. Mays, against J.W. McAlister. John George Beckwith and certain other defendants appeal.

Following is the decree of Judge Grimball of the Circuit Court directed to be reported:

This action was brought by Lawrence Butler Beckwith, Ann Hesse Beckwith, and Henry Moorer Beckwith, by their guardian ad litem, C.A. Mays, against J.W. McAlister, T.C. Gower, as trustee, W.F. Beckwith, Pearle M. Beckwith and John George Beckwith, Mildred M. Beckwith, Irene M. Beckwith, and Carol M. Beckwith, by their guardian ad litem, Marshall F. Sanders; and was a bill in equity to restrain the foreclosure of a mortgage by J.W. McAlister to set aside its priority and to determine the rights of the various parties.

The matter was heard by me in the Court of Common Pleas for Abbeville County in 1926, and I passed a decree, from which an appeal was taken to the Supreme Court.

Pursuant to the decision of the Supreme Court I passed an order on November 23, 1932, referring this matter to D.S. Jones, Master of Greenwood County, to take the testimony and hear and determine the issues under the decision of the Supreme Court and report the same to this Court. I further referred to D.S. Jones, Master of Greenwood County, the matter of attorneys' fees for the attorneys who have represented the plaintiffs in this litigation. The matter was referred to the Master of Greenwood County because the Master of Abbeville County was disqualified to hear the issues in this case.

The Master of Greenwood filed a report dated December 8, 1932, and this matter was heard before me in open Court at Abbeville on December 12, 1932, but the hearing was continued because of the illness of Mr. T. Frank Watkins, who represented the defendant, J.W. McAlister. Since that time the attorneys for the various interested parties have appeared before me and have argued this matter fully on the basis of the report filed by D.S. Jones, Master for Greenwood County.

The report of the master finds the amount due the four Beckwith minors, to-wit: John George Beckwith, Mildred M. Beckwith, Irene M. Beckwith, and Carol M. Beckwith, on their interest in the two Stelts mortgages under the decision of the Supreme Court is $3,621.41 as of February 6, 1933, which includes ten per cent. attorneys' fees. The Master finds that there is due on the McAlister mortgage as of February 6, 1933, including principal and interest, of $14,091.16, and finds that $1,000.00 is a reasonable fee for plaintiffs' attorneys for their services in this case.

The Master further finds that $125.00 is a reasonable fee for Hon. W.C. Wolfe of Orangeburg, who has assisted in representing the Beckwith minors in this litigation. The Master finds that $1,000.00 is a reasonable fee for Mays Featherstone, C.A. Mays, guardian ad litem, M.F. Sanders, guardian ad litem, and W.L. Daniel, attorney, for their entire services in representing the various Beckwith minors.

This matter, therefore, comes before me on the report of the Master, who has taken testimony to determine the amount due on the two Stelts mortgages and the McAlister mortgage, and has also taken testimony as to the proper amount to be allowed for attorneys' fees.

It appears from the Master's report that since the commencement of this action, the State Highway Department has condemned a right-of-way through the mortgaged premises and has awarded $1,800.00 as damages or compensation for the right-of-way and has issued its check therefor payable to the mortgagor, Mrs. Pearle M. Beckwith, and the mortgagee, J.W. McAlister. The Master finds that this amount should be paid into the Court by the State Highway Department for proper disbursement under this decree.

Upon reading the report of the Master, it is ordered, adjudged, and decreed that the said report be and it is hereby confirmed and made the judgment of this Court, except as hereinafter modified as to the amount of attorneys' fees, to be computed upon the interest of the above-named four minors in the Stelts mortgages. It is ordered that the attorneys' fees on the Stelts mortgages be computed on the basis of 5 per cent instead of 10 per cent. as recommended by the Master.

It is further ordered, adjudged, and decreed that John George Beckwith, Mildred M. Beckwith, Irene M. Beckwith, and Carol M. Beckwith have judgment against Mrs. Pearle M. Beckwith for the sum of $3,556.80, with interest from February 6, 1933, together with the cost of this proceeding, and that J.W. McAlister have judgment against Mrs. Pearle M. Beckwith for the sum of $14,091.16 as of February 6, 1933, and for the further sum of $1,000.00 as attorneys' fees, and for the cost of this action.

It is further ordered, adjudged, and decreed that the State Highway Department of South Carolina do pay the amount awarded under the condemnation proceedings above referred to, to-wit: $1,800.00, to D.S. Jones, Master, and that upon taking his receipt therefor the said Highway Department be discharged and released from further liability in connection with the condemnation above referred to.

It is further ordered, adjudged, and decreed that D.S. Jones as Master (the Master of Abbeville County being disqualified) do, after legal advertisement, sell the mortgaged premises hereinafter described, during the usual hours of public sale, before the courthouse door at Abbeville, S.C., on sales day in March, 1933, or on some convenient sales day thereafter to the highest bidder, for cash, the successful bidder being required to make a deposit of $500.00 immediately after the sale, as required by law, the said sale to be conducted under act regulating sales in foreclosure enacted by the General Assembly in 1932. That the proceeds of the sale, added to the $1,800.00 to be paid to the Master by the State Highway Department, be disbursed as follows:

1. To the payment of cost of this action;

2. To the payment of all taxes due and unpaid assessed against the mortgaged premises;

3. To attorneys' fees, as above fixed, in the sum of $1,125.00;

4. To the four Beckwith children, to-wit: John George Beckwith, Mildred M. Beckwith, Irene M. Beckwith, and Carol M. Beckwith, by their respective guardians, in equal shares the sum of $2,331.80;

5. To the defendant, J.W. McAlister, or his attorneys, the surplus up to the amount of $15,091.16; and

6. The remainder, if any, to the defendant, Mrs. Pearle M. Beckwith.

It is further ordered, adjudged, and decreed that upon the sale of the said premises all rights, title, interest, and equity of redemption of the defendants to this action, as well as all persons whomsoever claiming by, through, or under them, or any of them, in and to the premises or any part thereof herein ordered to be sold, be, and the same are hereby, forever barred and foreclosed.

It is further ordered, adjudged, and decreed that upon the terms of sale being complied with, the said Master do make title to the premises so sold in favor of the purchaser, who shall be let into possession of the said premises on presentation of the deed.

Following is a description of the premises herein ordered to be sold:

All that certain piece, parcel, or tract of land situate, lying, and being in Abbeville County, S.C. containing 2741/2 acres, more or less, and bounded now or formerly by lands of estate of J.F. Robinson, T.C. Sutherland, Visanski lands, and by Little River, which said stream separates said tract of land from lands of W.B. Martin. This being same tract of land conveyed to Pearle M. Beckwith by W.B. Martin on March 15, 1911, which said deed is recorded in the office of the Clerk of Court of Abbeville County, in Deed Book 30, at page 387, and is more fully described by a plat thereof recorded in the office of the Clerk of Court for Abbeville County in Plat Book No. 1, at page 174.

Also all that certain piece, parcel, or tract of land situate, lying, and being in County of Abbeville, State of South Carolina, containing 43 acres, more or less, and bounded by lands of W.R. Crawford on the north, on the east by Little River, on the south by Abbeville-Anderson public road, and west by lands of W.B. Martin, and being same lands conveyed to Pearle M. Beckwith by. W.B. Martin on October 24, 1921, which said deed is recorded in the office of Clerk of Court for Abbeville County in Deed Book No. 45, at page 95. A more complete description thereof may be found by reference to a plat thereof now on record in the office of the Clerk of Court for Abbeville County in Plat Book No. 1, at page 175.

Mr. Cordie Page, for appellants, cites: Protection of rights of infant: 168 S.E., 705; 162 S.C. 133; 160 S.E., 260; 117 S.C. 175; 108 S.E., 411; 61 S.C. 569; 156 S.C. 496; 153 S.E., 468; 115 S.C. 89; 104 S.E., 321. As to attorneys' fees allowable: 84 S.C. 458; 65 S.E., 1054; 67 S.E., 476; 37 S.C. 200; 15 S.E., 968; 68 S.C. 236; 47 S.E., 63; 19 R.C.L., 569; 27 Cyc., 1785. Pleadings: 23 Cyc., 816, 820; 38 Cyc., 1970; 119 S.C. 273; 112 S.E., 94; 16 Cyc., 403; Ann. Cas., 1918-A, 981; 88 S.C. 296; 10 R.C.L., 141; 20 C.J., 857. As to Supreme Court reversing Circuit Court in equity case: 56 S.C. 154; 34 S.E., 86; 55 S.C. 198; 33 S.E., 359; 51 S.C. 362; 29 S.E., 3; 113 S.C. 1; 130 S.E., 57.

Messrs. Watkins Prince, for respondent, J.W. McAlister, cite: Mortgaged property taken by eminent domain: 20 C.J., 857; 10 R.C.L., 140.

Messrs. Mays Featherstone and W.L. Daniel, for other respondents.


January 3, 1934. The opinion of the Court was delivered by


For a full statement of the facts out of which this action arose and of the issues involved in the former appeal of the case to this Court, see Beckwith v. McAlister, 165 S.C. 1; 162 S.E., 623. The present appeal is from a decree of his Honor, Judge Grimball, affirming, except as to the amount of certain attorneys' fees, the report of D. S Jones, Master of Greenwood County, to whom the matter was referred, "to take the testimony and hear and determine the issues under the decision of the Supreme Court."

We conclude, from an examination of the record, that the questions raised by appellants' exceptions are without substantial merit. With reference to the matter of attorneys' fees, it is contended that the effect of the circuit decree is to require the infant defendants to pay the attorneys for the plaintiffs who have no interest, as held in the former appeal, either in the property or the mortgage debt. While it appears from the record that the firm of Mays Featherstone, for whom a fee was fixed, represented the infant plaintiffs, the real contest was not between the plaintiffs and their brothers and sisters, the four infant defendants. The main fight in the case centered around the McAlister mortgage, and the main purpose of the action was to set aside the priority of that mortgage. To accomplish that purpose, it is undisputed that the attorneys for the infant plaintiffs and for the infant defendants united in a common fight, in which the attorneys for the plaintiffs took an active and a leading part. It is conceded that had McAlister prevailed in his contention that he had a first lien on the premises, the infant defendants would have been dispossessed of their home and left without anything. We think, in the light of the undisputed facts, that these attorneys are entitled to a fee for the services rendered as recommended by the Master and approved by the Circuit Judge.

The circuit decree, which will be reported, is affirmed.

MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES CARTER and BONHAM concur.


Summaries of

Beckwith et al. v. McAlister et al

Supreme Court of South Carolina
Jan 3, 1934
171 S.C. 344 (S.C. 1934)
Case details for

Beckwith et al. v. McAlister et al

Case Details

Full title:BECKWITH ET AL. v. McALISTER ET AL

Court:Supreme Court of South Carolina

Date published: Jan 3, 1934

Citations

171 S.C. 344 (S.C. 1934)
172 S.E. 311