Travelers Home Mortgage v. Mosley

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Travelers Home Mortgage Services, Inc.,        Respondent,

v.

Johnel Mosley and Ernest Mosley,        Defendants,

of whom Ernest Mosley is        Appellant.

Appeal From Orangeburg County
Olin D. Burgdorf, Master-In-Equity

Unpublished Opinion No. 2004-UP-497
Submitted September 15, 2004 Filed September 30, 2004

AFFIRMED

Edward D. Sullivan, of Columbia, for Appellant.

Louis H. Lang, and Demetri K. Koutrakos, of Columbia, for Respondent.

PER CURIAM:  Travelers Home Mortgage Services, Inc. brought this declaratory judgment action against Johnel Mosley and Ernest Mosley seeking a declaration that a deed executed by Johnel as purported attorney-in-fact for Ernest was valid.  The trial court found for Travelers on its motions for default judgment and summary judgment.  We affirm. 1

FACTS         

The subject property is located at 1432 Pepper Lane, Orangeburg, South Carolina.  In 1985, Ellis and Son, Inc. conveyed the property to Ernest and his wife, Shirley Mosley.  In 1995, Shirley conveyed her interest in the property to her brother-in-law, Johnel, for $17,000. 

The deed at issue in this case was executed on March 20, 1996.  The deed purported to convey Ernest's interest in the property to Johnel.  It is signed by "Ernest Moseley2 by Johnel Moseley attorney-in-fact for Ernest Moseley."  Ernest was incarcerated in federal prison at the time Johnel executed the 1996 deed. 

On April 23, 1996, Johnel executed a mortgage on the property with Cityscape Corporation in the original principal amount of $42,000.  Johnel subsequently refinanced the debt on the property by executing a mortgage for $61,000 to Collinbrook Mortgage Corporation on January 23, 1998.  From the proceeds of the loan secured by this mortgage, Johnel paid $42,000 to satisfy the Cityscape mortgage.  Collinbrook assigned the 1998 mortgage to Travelers. 

Johnel defaulted on the loan secured by the Travelers mortgage and Travelers foreclosed.  Travelers was the successful bidder at the foreclosure sale and the master issued a master's deed conveying the property to Travelers. 

On May 29, 2001, Travelers filed the present action against Johnel and Ernest seeking a declaratory judgment that the 1996 deed executed by Johnel as attorney-in-fact for Ernest was valid and conveyed the property in fee simple absolute to Johnel such that any interest Ernest had in the property was extinguished.  Travelers served Johnel on July 28, 2001.  Johnel failed to file an answer, notice of appearance, or other pleading.  Travelers served Ernest on August 30, 2001, at the federal prison in Yazoo City, Mississippi.  Ernest responded with a letter to Travelers that was filed with the court.  In the letter Ernest stated that he was involved with Johnel in a lawsuit over Johnel's illegal signing of Ernest's name. 

In October of 2001, Travelers filed and served an amended complaint.  Neither Johnel nor Ernest answered; therefore, Travelers filed affidavits of default.  Travelers filed a petition seeking a guardian ad litem (GAL) appointment for Ernest pursuant to Rule 17(c), SCRCP,3 due to his incarceration.  Edward D. Sullivan was appointed GAL for Ernest.  The GAL filed a motion to set aside Ernest's default and for leave to file responsive pleadings.  The GAL also filed an answer to the amended complaint with a counterclaim seeking a declaration that the subject property belonged to Ernest.  Travelers filed a motion for default judgment against Ernest and Johnel, or in the alternative, for default judgment against Johnel and for summary judgment against Ernest.  The GAL filed a cross-motion for summary judgment. 

The trial court granted Travelers' motion for default judgment, or alternatively, for summary judgment and denied Ernest's motion for summary judgment.  The court also ruled as an alternative Travelers would be entitled to equitable subrogation in the amount of $42,000, which essentially operates as an equitable lien on Ernest's 50% undivided interest.  This appeal followed.  

STANDARD OF REVIEW

"When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."  Baril v. Aiken Reg'l Med. Ctrs., 352 S.C. 271, 279-80, 573 S.E.2d 830, 835 (Ct. App. 2002).  The evidence should be viewed in the light most favorable to the non-moving party.  Id. at 280, 573 S.E.2d at 835.

LAW/ANALYSIS

Ernest argues the deed to Johnel was void ab initio because there was no written, recorded power of attorney granting Johnel authority to execute the deed.  Ernest is correct that "a power of attorney should be evidenced by an instrument in writing." In the Matter of Celsor, 330 S.C. 497, 501, 499 S.E.2d 809, 811 (1998) (citing 3 Am.Jur. Agency § 23 (1986)).  However, even if Johnel did not act pursuant to a valid power of attorney in executing the deed as attorney-in-fact for Ernest, Ernest ratified the transfer in his complaint in a lawsuit he filed against Johnel, in which Ernest admitted he had agreed to transfer the property to Johnel. 

One whose name has been signed to an instrument without authorization may ratify the signature and become bound thereby.  3 Am.Jur.2d Agency § 188 (2002). Ratification, as it relates to the law of agency, means the express or implied adoption and confirmation by one person of an act or contract performed or entered into in his behalf by another who at the time assumed to act as his agent.  Lincoln v. Aetna Cas. & Sur. Co, 300 S.C. 188, 191, 386 S.E.2d 801, 803 (Ct. App. 1989).  The three essential elements required to prove ratification are:  "(1) acceptance by the principal of the benefits of the agent's acts; (2) full knowledge of the facts; and (3) circumstances or an affirmative election indicating an intention to adopt the unauthorized arrangements."  Id.