Opinion
12956
July 25, 1930.
Before TOWNSEND, J., Richland, August, 1920. Affirmed.
Action by Clarence O. Nichols and others against Ida L. Andrews and others. From an adverse judgment the named defendant appeals. See also Ex parte Andrews, 152 S.C. 325, 149 S.C. 1.
Following are the Master's report and the decree of the Circuit Judge:
MASTER'S REPORTI, the undersigned Master, have to report:
1. Pursuant to an order of reference granted by Hon. W.H. Townsend, dated April 28, 1927, and also in accordance with the decision of the Supreme Court in the above-entitled cause, I held reference herein, attended by the attorneys of record, took the testimony offered, which is herewith reported, and find and conclude from said testimony and the testimony previously taken and reported, as hereinafter set forth.
2. I find that the defendant Ida L. Andrews did on or about 28 day of April, 1925, make, execute and deliver her certain bond or obligation unto Palmetto Building Loan Association conditioned for the payment of the full and just sum of $2,500.00 in installments, with interest thereon at the rate of 8% per annum.
3. I further find that in order to better secure the payment of said bond according to the terms and conditions thereof, the said Ida L. Andrews did on the same day make, execute and deliver her certain mortgage unto Palmetto Building Loan Association and by way thereof did convey the premises therein described and set forth in the complaint in this action.
4. I further find that said mortgage was filed for record and the same duly recorded in the office of the Clerk of Court for Richland County on the 29th day of April, 1925, in Mortgage Book "EX," at page 156.
5. I further find that the conditions of the bond and mortgage has been broken and that said mortgage is subject to foreclosure. I have therefore calculated the amount due on said bond and mortgage and find that the amount due thereon to the date of this report, to-wit: 15th day of July, 1929, including principal, interest and attorney's fee and insurance premiums is the sum of $3,636.43 according to the following statement:
Principal, dated April 28, 1925, 8% .............. $2,500.00 Interest from April 28, 1925, to July 15, 1929 ... 841.65 Fire Insurance Premium paid July 9, 1927 ......... 20.10 Interest on $20.10 from July 9, 1927, to July 15, 1929 ...................................... 3.25 Fire Insurance Premium paid Sept. 13, 1928 ....... 20.10 Interest on $20.10 from Sept. 13, 1928 ........... 1.33 Attorney's fee ................................... 250.00 --------- $3,636.43 6. I further find that the lien of said mortgage is and constitutes a first lien covering the premises described in the complaint, and that the sum of $250.00 is a reasonable fee to be allowed the attorney for the receiver for services rendered and to be rendered herein until the final adjudication of this action.7. I further find that the defendant, Ida L. Andrews did on or about 10th day of July, 1925, make, execute and deliver her certain bond or obligation unto Palmetto Building Loan Association conditioned for the payment of the full and just sum of $500.00 in monthly installments, with interest thereon at the rate of 8% per annum.
8. I further find that in order to better secure the payment of said bond according to the terms and conditions thereof, the said Ida L. Andrews did on the same day, make, execute and deliver her certain mortgage unto Palmetto Building Loan Association and by way thereof did convey the premises therein described and as set forth in the complaint in this action.
9. I further find that said mortgage was filed for record and the same duly recorded in the office of the Clerk of Court for Richland County on 11th day of July, 1925, in Mortgage Book "EX" at page 169.
10. I further find that the conditions of said bond and mortgage have been broken and that said mortgage is subject to foreclosure. I have, therefore, calculated the amount due on said bond and mortgage and find that the amount due thereon to the date of this report, to-wit: the 15th day of July, 1929, including principal, interest and attorney's fee is the sum of $711.00 all according to the following statement:
Principal bond dated July 10, 1925 ................ $500.00 Interest from July 10, 1925, to July 15, 1929, at 8 per cent ...................................... 161.00 Attorney's fee .................................... 50.00 ------- $711.00 11. I further find that the lien of said mortgage is and constitutes a second lien covering said premises and that the sum of $50.00 is a reasonable fee to be allowed the attorney for the receiver for services rendered and to be rendered herein until the final adjudication of this action.12. I further find that D.T. Faulkenberry was duly appointed receiver of the Palmetto Building Loan Association on the 10th day of December, 1926.
13. I further find that the defendant Ida L. Andrews in her answers herein admitted the execution and delivery of the above-mentioned bonds and mortgages but pleads failure of consideration. The testimony shows that the proceeds of said loans were not paid directly to Mrs. Andrews. The plaintiff and defendants, D.T. Faulkenberry as receiver and P.M. Woodward undertook to show the consideration, and from the testimony produced by them and after fully considering the testimony offered by the defendants, I find that the sum of $2,956.18 of such proceeds was expended for the erection of the premises described in the complaint, according to the following statements:
First Loan Draft of Home Lumber Company dated March 16, 1925, accepted by M.L. Andrews, endorsed by A.D. McFaddin and by him paid to the Lower Main Street Bank where it had been discounted ............................... $ 1,000.00 Check of A.D. McFaddin to H.W. Mitchum, 6 — 2 — 25 ......................... 125.00 Check of A.D. McFaddin to H.W. Mitchum, 9 — 23 — 25 ........................ 125.00 Check of A.D. McFaddin to H.W. Mitchum, 9 — 23 — 25 ........................ 125.00 Check of A.D. McFaddin to W.B. Guimarin Company, 5 — 9 — 25 ................ 200.00 Check of A.D. McFaddin to W.B. Guimarin Company, 5 — 30 — 25 ............... 80.00 Check of A.D. McFaddin to W.B. Guimarin Company, 6 — 6 — 25 ................ 50.00 Check of A.D. McFaddin to W.B. Guimarin Company, 7 — 17 — 25 ............... 41.00 Check of A.D. McFaddin to Lorick Lowrance, 6 — 18 — 25 ........................ 50.00 Check of A.D. McFaddin to Lorick Lowrance, 8 — 1 — 25 ......................... 75.00 Check of A.D. McFaddin to Lorick Lowrance, 8 — 31 — 25 ........................ 56.95 Check of A.D. McFaddin to Otis L. Sims, 7 — 9 — 25 ......................... 22.41 Check of A.D. McFaddin to T.S. Strickland, 7 — 2 — 25 ......................... 7.50 Check of A.D. McFaddin to W.C. Easterling, 4 — 13 — 25 ....................... 30.00 Check of A.D. McFaddin to W.C. Easterling, 5 — 11 — 25 ....................... 25.00 Check of A.D. McFaddin to M.L. Andrews, 4 — 18 — 25 ....................... 50.00 Check of A.D. McFaddin to M.L. Andrews, 5 — 5 — 25 ........................ 55.00 Check of A.D. McFaddin to M.L. Andrews, 5 — 9 — 25 ........................ 60.00 Check of A.D. McFaddin to M.L. Andrews, 5 — 16 — 25 ....................... 145.00 Check of A.D. McFaddin to M.L. Andrews, 5 — 23 — 25 ....................... 80.00 Check of A.D. McFaddin to M.L. Andrews, 6 — 6 — 25 ........................ 36.00 Check of A.D. McFaddin to M.L. Andrews, 7 — 1 — 25 ........................ 50.00 Check of A.D. McFaddin to M.L. Andrews, 7 — 5 — 25 ......................... 50.00 ---------- $ 2,538.86 I find that the above expenditures were made prior to the execution and delivery of the second bond and mortgage except the last two payments to Mitchum, the last two payments to Lorick Lowrance and the last payment to Guimarin Company, but invoices including said amounts had already been rendered the said McFaddin. Second Loan Paid M.L. Andrews ............................... $ 50.00 Paid M.L. Andrews, 7 — 13 — 25 ....... 10.00 Paid M.L. Andrews, 7 — 24 — 25 ....... 10.00 Paid M.L. Andrews, 7 — 29 — 25 ....... 100.00 Paid M.L. Andrews, 8 — 1 — 25 ......... 35.00 Paid M.L. Andrews, 8 — 7 — 25 ........ 50.00 Paid M.L. Andrews, 8 — 11 — 25 ....... 75.00 Paid Water Rent for premises in question, 10 — 29 — 25 .................................. 5.45 Taxes on Premises in question ..................... 18.21 Check of A.D. McFaddin to H.W. Mitchum, 12 — 3 — 25 ........................ 13.50 Check of A.D. McFaddin to Webb's Art Store, 6 — 19 — 26 ........................ 30.00 Check of A.D. McFaddin to Otis L. Sims ............ 20.16 --------- $ 417.32 The following items are also charged on the books of A. D. McFaddin against the second loan and while they did not go into the construction of the house in question I find that under the testimony they are chargeable against second loan: Paid Mutual Life Insurance Co., 8 — 27 — 25 ... $ 87.36 Paid Mutual Life Insurance Co., 8 — 27 — 25 .... 29.45 January, 2315 Lincoln Street ............................... 15.30 ------- $ 132.11 There are numerous other checks of A.D. McFaddin to M.L. Andrews in evidence which need not be considered since the payments by McFaddin above listed exceed the proceeds of both mortgages.14. I further find that A.D. McFaddin drew the $3,000.00 from the said association by checks made to him as attorney; that he placed said funds in his private account and therefrom paid for the construction of the house in question, the balance of said funds along with some of his own money having been used for the benefit of the husband, M.L. Andrews, as above set out.
15. I further find that on or about the 1st day of July, 1926, the Palmetto Building Loan Association executed its certain promissory note unto the plaintiff wherein it promised to pay the sum of $2,500.00 with interest thereon at the rate of 7% per annum, payable quarterly, and as security for the payment of said note, it placed as collateral security the bond and mortgage first above set out with the said Clarence O. Nichols as security for the payment of said note, and that the plaintiff now so holds same, and that said note with interest thereon from the 1st day of October, 1926, less certain payments as hereinafter indicated is due and payable.
16. I have, therefore, calculated the amount due on said note up to the date of this report, to-wit: the 15th day of July, 1929, and find that the amount due thereon including principal, interest, attorney's fee and insurance premiums is the sum of $2,818.65, all according to the following statement:
Principal, 7% .................................... $ 2,500.00 Interest from October, 1926, to January 18, 1927 53.99 ---------- $ 2,553.99 Paid January 18, 1927 ............................. 403.00 ---------- $ 2,150.99 Interest to February 10, 1927 ..................... 9.43 ---------- $ 2,160.42 Paid February 10, 1927 ............................ 21.21 ---------- Balance due February 10, 1927 .....................$ 2,139.21 Interest from February 10, 1927, to July 15, 1929 363.91 Interest on Interest .............................. 27.89 Fire Insurance Premiums paid by plaintiff ......... 37.64 Attorney's fee .................................... 250.00 ---------- $ 2,818.65 17. I further find that the sum of $250.00 is a reasonable fee to be allowed the attorney for the plaintiff for his services rendered in connection with the collection of the said note.18. I further find that on or about the 5th day of August, 1925, the Palmetto Building Loan Association executed its promissory note unto the defendant P.M. Woodward wherein it promised to pay the sum of $700.00 ten days after date with interest at the rate of 7% per annum, payable quarterly, and as security for the payment of said note it placed with him along with other papers as collateral security the second bond and mortgage in question and that P.M. Woodward now so holds same, and that said note with interest thereon from July 1, 1926, is due and payable. I have, therefore, calculated the amount of principal, interest and attorney's fee due on said note, and find that the amount due thereon to the date of this report, to-wit: the 15th day of July, 1929, is the sum of $909.77 all according to the following statement:
Principal 7% ....................................... $ 700.00 Interest from July 1, 1926, to July 15, 1929 ....... 149.04 Interest on Interest ............................... 10.73 Attorney's fee ..................................... 50.00 -------- $ 909.77 19. I further find that the sum of $50.00 is a reasonable fee to be allowed the attorney for the defendant, P.M. Woodward, for his services rendered in connection with the collection of this note.20. I would, therefore, recommend that the receiver herein have judgment as prayed for in his answer, that the mortgage in question be foreclosed, and the proceeds arising from the sale of said property, after the payment of the costs and expenses of such sale and the costs and expenses of this action be paid over to said receiver and after all his costs and expenses have been paid that he pay the balance due on plaintiff's note out of the proceeds due on the first bond and mortgage and that he pay the said P.M. Woodward the amount received on account of the second bond and mortgage over and above the net proceeds available on account of the first bond and mortgage to be applied on his said note, and thereafter any proceeds remaining to be held subject to the further order of this Court.
DECREEThe case comes before me the second time for hearing on further evidence taken and reported by the Master, and on exceptions to his report and findings. For the former hearing see 149 S.C. 1, 146 S.E., 610.
The additional evidence includes the testimony of A.D. McFaddin who was the managing officer of the Building Loan Association and an employer and business associate of M.L. Andrews, the husband and managing agent of the defendant, Ida L. Andrews. While she expressly denies such agency she testifies to facts and circumstances which in connection with other evidence, shows it to exist. At the former trial the testimony of McFaddin, and his aid in producing items of evidence — checks, memoranda and book entries corroborating his testimony was not available, he being then under a mental cloud, and suffering from the confusion and depression which followed his carelessness in the transactions of the Building Loan Association, and in his own private business. The defendant, Ida L. Andrews and her husband meet McFaddin's testimony by general and vague denials, which fail to account for the improvements made on the mortgaged premises, if McFaddin's testimony is disregarded.
The case must be decided on the preponderance of the evidence as to whether or not the defendant Ida L. Andrews received the benefit of improvements made on her property, at her instance and with her acquiescence, by the Building Loan Association by the use of its funds, In weighing the assertions of McFaddin, corroborated by the checks, memoranda and book entries produced in evidence, and their denials by Mrs. Andrews and her husband, it is to be remembered that their interest in the result is greater than his, and after rechecking over and considering the evidence bearing on each item charged against Mrs. Andrews in the Master's report, I concur in the findings of the Master that M.L. Andrews was the agent of his wife, Ida L. Andrews, in procuring the material and means to build on and improve the mortgaged premises, and that she executed the bonds and mortgaged sued on for the purpose of securing the repayment to the association of its monies advanced to her husband and agent by the Palmetto Building Loan Association through McFaddin, for such purpose, and in paying water rents, taxes and insurance necessary for the protection of the mortgaged property. Mrs. Andrews personally knew little about these advances or how they were used — trusting her husband entirely and leaving everything to his management.
I have checked over all evidence bearing on the items in the Master's report, dated 15th July, 1929, and the checks are produced to sustain every item charged against the first loan, and all of the items charged on the fifth page of the report against the second loan, except the items of July 29, 1925, August 1, 1925, August 7, 1925, and August 11, 1925, and these four items are supported by entries made on the account book of the association, and McFaddin testifies fully as to them.
I concur in the Master's finding that the funds actually advanced by the association, and used for such purposes as contemplated by Mrs. Andrews upon and under the first bond and mortgage to the sum of twenty-five hundred and thirty-eight and 86-100 ($2,538.86) dollars; and upon and under the second bond and mortgage now held by the defendant Woodward such advances amounted to the sum of four hundred and seventeen and 32-100 ($417.32) dollars.
I do not concur with the Master's finding and conclusion that the disbursements made by the association for life insurance premiums and other premises are chargeable against Mrs. Andrews under the mortgages sued on, nor can the plaintiff in this case recover such items.
I concur with the Master's findings that there was at the date of the Master's report, 15th July, 1929, due by the defendant Ida L. Andrews to the plaintiff, Nichols and to D.T. Faulkenberry, as receiver of the Palmetto Building Loan Association, on the first bond and mortgage the sum of three thousand six hundred and thirty-six and 43-100 dollars, including interest to that date, and attorney's fees as reported by the Master. I also find that there was then due — 15th July, 1929 — by the defendant Ida L. Andrews to the defendant, P.M. Woodward, the sum of five hundred and ninety-three and 49-100 dollars, upon the second bond and mortgage held by him, as follows: Principal, $417.32; interest, $134.34; and attorney's fee, $41.73; total, $593.49.
Let a formal order for judgment and decree for foreclosure and sale be prepared in accordance herewith, and submitted to me for signature and filing.
Mr. Andrew J. Bethea, for appellant, cites: No estoppel: 133 S.C. 431. Assignee of bond and mortgage cannot set up defense of innocent purchaser for value without notice: 38 S.C. 138. Burden of proof on assignee of past due chose in action to show notice of assignment: 56 S.C. 313; 22 S.C. 10. Assignee took subject to equities between parties: 22 S.C. 10; 38 S.C. 138. Measure of care due by assignee: 133 S.C. 443; 56 S.C. 313; 27 S.C. 226; 79 S.C. 487; 81 S.C. 329; 67 S.C. 432. Mere execution of bond and mortgage cannot amount to an estoppel: 2 Palmer Eq., Sec. 711; 22 S.C. 9; 27 S.C. 479.
Messrs. H.F. Jennings, A.W. Holman and D.F. Faulkenberry, for respondent, cite: Findings of fact by master concurred in by Circuit Judge will not be disturbed unless preponderance of evidence shows there was error: 133 S.C. 51; 103 S.C. 307; 100 S.C. 157; 91 S.C. 473. Case not governed by 133 S.C. 431, but by 138 S.C. 365; 135 S.C. 409.
July 25, 1930. The opinion of the Court was delivered by
This case, which is an action for foreclosure, commenced in the Court of Common Pleas for Richland County, February 21, 1927, was heretofore before this Court on appeal. The issues raised by the pleadings are set forth in the opinion of the Court on the former appeal ( 149 S.C. 1, 146. S.E., 610) and will not be re-stated here. The case having been remanded to the Circuit Court with directions to remand the case to the Master "for clarification of the unexplained complexities" and the taking of additional evidence, the instruction was complied with, and the Master, after holding references and taking such additional testimony as the parties litigant offered, made another report in the case. The matter was heard by his Honor, Judge William H. Townsend, who confirmed the Master's report, except as to a small amount paid out for the insurance premiums. The conclusion reached by Judge Townsend is satisfactory to this Court. Therefore, the judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.
MR. JUSTICE COTHRAN concurs in part and dissents in part.
There is no question of law in this case, one in equity. The rule is well established that, to reverse a Circuit Judge's decree on findings of fact, it is necessary for the appellant to show error in such findings. The weight of the evidence and the credibility of the witnesses were matters for the Circuit Judge, and he was in better position than we are to determine these matters. Not being convinced that any finding of Judge Townsend was erroneous, it is my duty to favor an affirmance of his decree.
This is an action of foreclosure commenced February 21, 1927, by the plaintiff Nichols, as assignee of a bond and mortgage executed and delivered by the defendant Ida L. Andrews, to the Palmetto Building Loan Association for $2,500.00, dated April 28, 1925. The defendant Woodward set up in his answer a claim as assignee of a bond and mortgage executed and delivered by the defendant Ida L. Andrews, to the same association for $500.00, dated August 5, 1925.
The defendant, Mrs. Andrews, admits the execution and delivery of both bonds and mortgages, but denies that she received from the association anything upon them, pleading failure and want of consideration.
The case was referred to the Master of Richland County to hear and determine all of the issues in the case, of law and fact. He filed a report dated September 1, 1927. In reference to it, the Circuit Judge says in his decree: "By her answer the defendant, Ida L. Andrews, pleaded a want and failure in the consideration of both mortgages. Although the defendant, Ida L. Andrews served her answer to the complaint on the attorney for the plaintiff, and although she served a separate answer to the cross-answer of the defendant, P.M. Woodward, in which she specifically pleaded a want and failure in the consideration of the bond and mortgage set out in the answer of the said P.M. Woodward, the Master made no reference in his report to the defense of the said Ida L. Andrews to the causes of action set out in the complaint and in the answer of the defendant, P.M. Woodward, but merely computed and reported what he considered to be due upon the said two mortgages."
The matter came on to be heard by his Honor, Judge Townsend, upon exceptions to the Master's report. He filed a decree dated November 12, 1927, confirming the Master's report, making a specific finding of fact that the defendant Mrs. Andrews had received the proceeds of both loans made to her by the association, and decreeing foreclosure.
From this decree the defendant appealed, and in an opinion filed February 7, 1929 ( 149 S.C. 1, 146 S.E., 610, 611), this Court held:
"Ordinarily the production and proof of a bond and mortgage carries with them the presumption of a valuable consideration which the obligor and mortgagor pleading want of consideration assumes the burden of disproving; but in this case that presumption is rebutted by proof on the part of the plaintiff that the payments were made to others than the mortgagor. The Circuit Judge was therefore right in holding that the plaintiff then assumed the burden of showing that the payments were rightfully made."
And:
"In view of the failure of the Master to make specific findings of fact and of the burden of showing the authorization of the payments claimed to have been made which devolved upon the plaintiff, and of the admitted unsatisfactory evidence, we are of opinion that the case should have been remanded by the Circuit Judge to the Master for a clarification of the unexplained complexities presented."
In passing it may be observed that in the decree of his Honor, Judge Townsend, dated November 12, 1927 (the decree from which the former appeal was taken), it was stated:
"This testimony and these checks and entries conclusively show that the only money which the Palmetto Building Loan Association parted with by reason of the bonds and mortgages given it by Ida L. Andrews was the sum of seventeen hundred and fifty-three dollars and fifty-three cents ($1,753.53)."
In compliance with the judgment of this Court, the matter was recommitted to the Master "for compliance with the (original) order of reference."
References were held; additional testimony was taken; and the Master filed his report dated July 15, 1929, in which he found that the amount due as of that date upon the $2,500.00 bond and mortgage was $3,636.43, and upon the $500.00 bond and mortgage $711.00.
The Master found that all of the proceeds of the first loan (the $2,500.00 bond and mortgage) had been paid to the defendant through her agent, her husband, M.L. Andrews, as shown by the itemized list of payments set out below; and that all of the proceeds of the second loan (the $500.00 bond and mortgage) had been similarly paid, as shown by the itemized list set out below.
The matter then came up on exceptions to the Master's report before his Honor, Judge Townsend, who on August 27, 1929, filed a decree holding that the payments out of the proceeds of the loans, made by McFaddin to M.L. Andrews, were made to him as agent of Mrs. Andrews and that she was bound thereby; he confirmed the report as to the dates and amounts of these payments and rendered judgment of foreclosure for $3,636.43, the amount ascertained to be due on the $2,500.00 bond and mortgage, and reduced the amount ascertained to be due on the $500.00 bond and mortgage to $417.32.
From this decree the defendant has appealed.
The Master held that from the proceeds of the $2,500.00 bond and mortgage payments had been made by McFaddin to M.L. Andrews, as agent of Mrs. Andrews, as follows:
1925 1. April 13 Easterling ................... $ 30.00 2. April 18 M.L. Andrews ................. 50.00 3. May 5 Guimarin ..................... 200.00 4. May 5 Guimarin ..................... 55.00 5. May 9 M.L. Andrews ................. 60.00 6. May 11 Easterling ................... 25.00 7. May 16 Bank ......................... 1,000.00 8. May 16 M.L. Andrews ................. 145.00 9. May 23 M.L. Andrews ................. 80.00 10. May 30 Guimarin ..................... 80.00 11. June 2 Mitchum ...................... 125.00 12. June 6 Guimarin ....................... 50.00 13. June 6 M.L. Andrews ................... 36.00 14. June 18 Lorick Lowrance .............. 50.00 15. July 1 M.L. Andrews ................... 50.00 16. July 2 Strickland ..................... 7.50 17. July 5 M.L. Andrews ................... 50.00 18. July 9 Sims ........................... 22.41 19. July 17 Guimarin ....................... 41.00 20. Aug. 1 Lorick Lowrance .............. 75.00 21. Aug. 31 Lorick Lowrance .............. 56.95 22. Sept. 23 Mitchum ........................ 125.00 23. Sept. 23 Mitchum ........................ 125.00 --------- $2,538.86 The following items have not been established to my satisfaction:3. May 5. Guimarin $200.00: M.L. Andrews testified that he borrowed the money from the bank, paid it to McFaddin, and he paid it to Guimarin; McFaddin does not deny this statement.
4. May 5. Guimarin $55: McFaddin testified that it "was not on the book against Mrs. Andrews, but indications are it went into the house." M.L. Andrews testified that it was for commissions due him by McFaddin.
8. May 16. M.L. Andrews $145: All that McFaddin testified about this item is that it "is put down on the white ledger." M.L. Andrews testified that it was for repairs on a different house.
9. May 16. M.L. Andrews $80.00: All that McFaddin testified about this item is that "it is on the same book."
13. June 6. M.L. Andrews $36.00: All that McFaddin testified about this item is that it was "on the book." M.L. Andrews testified that this was for repairs upon a different house.
15. July 1. M.L. Andrews $50.00: As to this item McFaddin testified that it was not on the book, but the check indicated that it was upon account of defendant.
17. July 5. M.L. Andrews $50.00: As to this item McFaddin testified only, "that is on loose-leaf ledger under head M.L. Andrews."
These doubtful items amount to $616.00 and should be deducted from the total, $2,538.86, leaving $1,922.86 as the amount paid out by McFaddin through M.L. Andrews, agent of Mrs. Andrews.
I am more inclined to approve of this reduction for the reason that it is a conceded fact that the books of the association show that all of the money paid out on account of the $2,500.00 bond and mortgage loan was $1,753.53, if not upon both loans.
It is admitted by McFaddin that his accounts are in hopeless confusion.
Giving the plaintiff the benefit of the foregoing balance of $1,922.86, and allowing him interest from the date of the mortgage, notwithstanding the fact that the payments were widely scattered, the net balance due by Mrs. Andrews would be that amount plus interest from April 28, 1925, at 8 per cent. per annum, $2,730.46, interest calculated to July 28, 1930, plus attorney's fees $250.00; total $2,980.46.
I really think that in view of the unpardonable confusion caused by the handling of the matter by McFaddin, the accredited representative of the mortgagee, the true amount as appears from the books of the association, as paid out by McFaddin, should be fixed at $1,753.53, particularly as there were other business transactions between. McFaddin and M.L. Andrews to which many of the advances made by McFaddin to Andrews most probably were applied.
If that should be considered by the Court as the proper balance, the amount would be $1,753.53, with interest at 8 per cent. from April 28, 1925, to July 28, 1930, $2,490.00 plus attorney's fees $250.00; total $2,740.00. If a majority of the Court concur in this conclusion, it will be so ordered.
As to the second loan, I agree with the conclusion of his Honor, Judge Townsend, that the correct amount is $417.32 with interest at 8 per cent. from July 10, 1925, to July 28, 1930, $579.31, plus attorney's fees $50.00; total $629.31.
I think for these reasons that the decree should be modified accordingly.