47 S.C. 393 | S.C. | 1896
The opinion of the Court was delivered by
The petitioner, appellant, at the January term of Court for Abbeville County, on petition, affidavits, and notice to respondents, moved Judge Earle for an order setting aside, so far as a petitioner was concerned, a judgment of foreclosure rendered in the above stated case at the June term, 1895. Relief was sought upon the ground of “the unauthorized act and mistake of Messrs.
The Alma Lumber Company had foreclosed a mortgage •on the property of Hessie A. Beacham, and the appellant and respondents were all made parties defendant, they claiming liens on the property. The respondents here answered in that case, setting up their liens and claiming priority over the lien of the plaintiff of the said defendant, Jones, and of the other defendants, while the defendant, Jones, alleged that his mechanics’ lien was second only to the lien of Parker & Haynesworth. The petition, in fact, states that the suit was begun “for the purpose of settling priorities of various liens on the property described in the complaint, and for the purpose of selling it to satisfy the liens.” The petition also states that Messrs. Graydon & Graydon were the attorneys for the petitioner, the defendant, Jones, in that suit. The issues of the foreclosure suit were referred to a referee. All parties, in person or by attorneys, were present before the referee, the petitioner being represented by Messrs. Graydon & Graydon, and a report was agreed on by all parties, after concessions were made by some of the parties. This agreement and report ranked t’he liens upon the whole property as follows: first, mortgage of F. T. Miles; second and third, mortgages of Piedmont Savings and Investment Co.; fourth, mortgage of Parker & Haynesworth; fifth, mechanics’ lien of petitioners; seventh and eighth, two other mortgages. By this arrangement the defendant, Jones, claiming a lien on a part of the premises sought to be foreclosed, second to the lien of Parker & Haynesworth, was allowed a lien on the whole property next to Parker & Haynesworth, but fifth in order. Furthermore, no contest was made as to the defendant, Jones’, claim of mechanics’
The mistake of the attorneys alleged, as ground to set aside the consent decree, was that the attorneys thought the amount of the lien placed ahead of petitioner’s lien was $3,500, whereas they are now found to be $3,700; and, further, because the attorneys for petitioner thought the property would bring enough to pay the mortgages and petitioner’s lien. No doubt, all parties thought the Alma Number Company, largely interested, and holding liens junior to that of appellant and respondents, would make the property bring enough to satisfy its own and prior liens. Upon this showing, Judge Earle refused the motion to set aside the judgment of foreclosure, and petitioner now alleges error in his so refusing, “because of the unauthorized act and mistake of the attorneys in subordinating petitioner’s lien to junior liens.” ’
The judgment of the Circuit Court is affirmed.