Ohlandt v. Craven

144 S.E. 162, 146 S.C. 450, 1928 S.C. LEXIS 137

• Court: Supreme Court of South Carolina
• Decided: August 13, 1928
• Docket: 12491
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Stabeer.

The circuit decree, which will be reported, contains a statement of the issues involved in the controversy.

While we do not approve of all said by the Circuit Judge with respect to the law, we think that the evidence, which we deem unnecessary to discuss in detail, sufficiently establishes Kroeg’s agency for Kohnke. We are not, however, satisfied with the Court’s disposition of the question relating to the validity of the final payment made by the mortgagor, Craven, to Kroeg. The mortgagee, Kohnke, died October 28, 1921; the last and final payment on the bond, in the sum of $314 principal and interest, was made by the mortgagor to Kroeg on December 7, 1921, more than a month after Kohnke’s death. •

There is no doubt that the authority of Kroeg, as the agent of Kohnke, died with his principal; but the respondent contends that, even if this be conceded, the executors of the estate, in not promptly notifying the mortgagor that they held the bond and mortgage, that interest was due November 7, 1921, and that all payment' should be made to them, were guilty of such gross negligence and laches as will estop them to question the final payment.

We think this contention is without merit. The executors had the right to assume that payment of all debts owing the estate, whether secured or otherwise, would be made by debtors to the proper party — that is, to the executors. No good reason is made to appear why Mrs. Craven was entitled to the notices claimed by her. Though acting in good faith, she unfortunately made the payment to Kroeg at a time when he was without authority to receive it, and to this mistake on her part, coupled with his unlawful conduct in receiving the money and in not paying it over to the executors, her misfortune is solely due. We may add, in passing, that the executors did not even know, at the time of the final payment to Kroeg and for a long time after his death, that he had been acting as Kohnke’s agent in the collection of •the debt.

We find, and so hold, that the plaintiff, John F. Ohlandt, as executor of Kohnke’s estate, is entitled to judgment against the defendant, Lillie V. Craven, in the sum of $300, with interest thereon from the 7th day of August, 1921, at the rate of 7 per cent, per annum, to be computed quarterly, plus the interest on $200 from the 7th day of August, 1921, to the 3d day of October, 1921, at the rate of 7 per cent. per annum, and 10 per cent, on the whole amount owing as attorney’s fees, with costs; also that he is entitled to foreclosure of the mortgage in question and sale of the property described in same, in conformity to the law governing in matters of foreclosure. In these respects and to this extent the circuit decree is modified.

The case is therefore remanded to the Circuit Court, with leave to the plaintiff to apply to and obtain from the Court of Common Pleas a decree in accordance with the views herein expressed; and it is so ordered.

Mr. Chief Justice Watts and Messrs. Justices Brease and Carter concur.