62 S.E. 513 | S.C. | 1909
Lead Opinion
January 18, 1909. The opinion of the Court was delivered by There are no issues of fact, and under the agreement of counsel (as stated in the decree of his Honor, the Circuit Judge), the only question is, whether F.W. Wagener Co. were creditors for value without notice under the recording acts.
In his decree the Circuit Judge gives his reasons why F. W. Wagener Co. did not have notice as follows: "It is contended by plaintiffs that in June, 1887, when Beulah took the deed, she went into actual possession, and that possession carried notice to the Wageners. I do not think the possession by Beulah was of such a character and long enough continued to carry notice to the Wageners. Furthermore, Georgianna had a life estate in the land, which was only ended in 1902, and up to that time she was the one lawfully in possession."
In determining the question whether Wagener Co. had notice, we desire to call special attention to the following facts: On the 28th day of February, 1883, G. Ernest *137 Brown, in consideration of $1,050.00, made an assignment of his interest to J. Feaster Brown, which was recorded on the 28th of April, 1896. In September, 1895, J. Feaster Brown's one-half interest was sold by the sheriff, under a judgment against him, and purchased by his wife, Beulah C. Brown, whose deed was recorded in 1896, at which time she executed a mortgage on the land, which was duly recorded, in which she claimed to be the owner of the premises. On 3d of June, 1887, G. Ernest Brown executed a deed of conveyance of his own one-half interest in the land to Beulah C. Brown, but which was not recorded until the 27th of June, 1902; it seems to be conceded, or, at least, the ruling of the Circuit Judge was made on the hypothesis that Beulah C. Brown, immediately after the execution of said deed of conveyance, entered into possession of the land.
This fact, taken in connection with the record of the assignment, showed that J. Feaster Brown occupied the position of a mortgagee in possession; and, taken in connection with the record of the mortgage, showed that Beulah C. Brown was exercising acts of ownership and was in possession, claiming the land as her own.
Two or more persons may be in possession at the same time; therefore, the fact that Georgianna Brown was also in possession did not dispense with the necessity on the part of Wagener Co. to make inquiry as to the rights of J. Feaster Brown and Beulah C. Brown.
Wagener Co. were not in a position to claim that they were subsequent creditors for value without notice until the judgment was rendered in their favor, in 1897, as the statute extending the provisions of the recording acts to simple contract creditors was not enacted until 1898. Eula M. Brown traced her title from Beulah C. Brown.
Under these circumstances, the only reasonable inference from the admitted facts is that there was enough to put Wagener Co. upon inquiry, which if pursued with due *138 diligence would have led to knowledge of the title under which the appellant claimed.
Therefore, the Circuit Judge erred in ruling that the possession by Beulah was not long enough continued to carry notice to the Wageners, and that Georgianna Brown, the life tenant, up to the time of her death, was the only one lawfully in possession. Daniel v. Hester,
The question of notice under the recording acts presents a legal issue. Gregory v. Ducker,
Therefore, as there was error, the judgment should be reversed, and the case remanded to the Circuit Court for a new trial upon this issue.
MR. CHIEF JUSTICE POPE concurs.
Dissenting Opinion
I am unable to concur in a reversal. The facts are sufficiently set out in the opinion of Mr. Justice Gary. The issue before the Circuit Court was one of legal title to the land in dispute, and the findings of fact on that issue made by the Circuit Judge are binding on this Court, unless they are entirely unsupported by evidence. Johnson v. Jones,
Wagener's judgment against G. Ernest Brown was recovered in 1897, and Mrs. Georgianna Brown, the life tenant of the land, lived until 1902. Ernest Brown conveyed the one-half interest to Beulah C. Brown by deed, dated 3d June, 1887, but not recorded until 27th June, 1902; and there was evidence tending to show that at or about the same *139
time Mrs. Georgianna Brown, the mother of Ernest and Feaster Brown, who was the life tenant, surrendered the land to Beulah C. Brown. The question of law is whether the possession acquired by Beulah C. Brown put Wagener Company on notice of her title before the entry of their judgment in 1897. If the issue were whether this transfer of the land and subsequent holding of possession of it by Beulah C. Brown was sufficient to charge a creditor or a purchaser of the life tenant with notice that the life tenant had parted with, and Beulah C. Brown had acquired, her interest, the following cases might be regarded conclusive that the possession was sufficient notice: Sheorn v. Robinson,
But, according to the papers on record, neither Ernest Brown nor Feaster Brown had any right of possession until the death of their mother, and those dealing with Ernest and Feaster Brown cannot be held to be put on notice that they had parted with their remainder from the fact that another held a possession of which they had no legal control. Such possession was notice sufficient to put the public on inquiry as to whether the life tenant had parted with her interest, but not whether the remaindermen, who had no right of possession, had parted with their interest. While recognizing fully the authority of the cases above cited, the doctrine ought not to be extended to the case here presented. Assuming, therefore, that the Circuit Judge was bound to accept the evidence of the parties as to the change of possession to Beulah C. Brown, such a change of possession did not charge Wagener Company with notice that the remaindermen had parted with their title.
The record of the mortgage given by Beulah C. Brown on the land was not constructive notice to creditors or purchasers *140 that the owners had parted with their title to her. I think the judgment should be affirmed.
The Court being evenly divided, the judgment of the Circuit Court is affirmed.
MR. JUSTICE JONES concurs.
Addendum
January 18, 1908. The appellants have filed a petition for rehearing in this cause, alleging that in the preparation of the opinions rendered, this Court overlooked the claim of homestead in right of G. Ernest Brown, the judgment debtor; the discharge of G. Ernest Brown in the bankrupt court, and the laches of Wagener Company in enforcing their judgment. The Court did not understand that these matters were seriously relied upon at the argument, and hence they were not discussed in the opinions. We think they are so free from any serious doubt that a reargument is quite unnecessary. The petition does not allege any claim for homestead, and of course does not allege that either the sheriff or the judgment creditor is about to violate any homestead right. The right to homestead not having been an issue in the pleadings, nor considered by the Circuit Court, this Court decided nothing with respect to it.
The discharge of G. Ernest Brown in bankruptcy did not affect the judgment lien of Wagener Company on his interest in the land in dispute. His petition was filed in 1904, long after the lien of the judgment attached. Even if there had been a sale of G. Ernest Brown's interest in this land in the bankruptcy proceedings, it would not have affected the lien of the Wagener judgment; for an order of the bankrupt court directing a sale of the bankrupt's property, without mentioning liens, will be construed as only authorizing a sale subject to existing liens. In re Blumberg, 94 Fed., 476; In re Plateville F. M. Co., 147 Fed., 828; Thompson v. Fairbanks, *141
The time within which a judgment creditor may enforce his judgment is fixed by statute, and there is, therefore, no room for the application of the doctrine of laches.
The petition for rehearing is dismissed, and the order staying the remittur is revoked.
