45 S.E. 167 | S.C. | 1903
No arguments furnished.
July 29, 1903. The opinion of the Court was delivered by
This appeal questions the propriety of an order appointing a receiver pendente lite in the above action, which was brought to recover possession of a house and lot in Greenwood, S.C. or alternatively to bar defendant's equity of redemption, if any, therein. Respondent moves to dismiss the appeal upon the ground that notice of intention to appeal was not served in time. The order was *252
filed in the clerk's office of Greenwood County on the 3d day of January, 1902, on which same day notice of the filing was given to one of the defendant's attorneys by delivering the original order, with the day of filing indorsed thereon. Notice of intention to appeal was served on the 4th day of January, 1902, eleven days after filing of the order. The statute, section 345, Code of Procedure, permits notice of appeal to be given "within ten days after written notice that such order has been granted, or decree or judgment rendered." We do not think that a delivery of the original order, with time of filing indorsed, is a compliance with the statutory method of limiting the time within which to appeal. In the case of Lake v. Moore,
The application for receiver was made upon the verified complaint and upon affidavits for and against the appointment. By these the following facts appear: (1) Hattie Williams on May 3, 1900, executed to plaintiff a mortgage of the real estate in question, which was recorded same day. (2) Hattie Williams executed to defendant a deed conveying the said property on March 4, 1901, which was delivered to the proper officer for record within two or three weeks thereafter, but was not actually transcribed upon the record book until May 28, 1901. (3) An action to foreclose said mortgage was commenced *253 against Hattie Williams on May 22, 1901, resulting in a decree for foreclosure August 9, 1901, and a sale thereunder in October, 1901, at which plaintiff became purchaser for $250, and received the master's deed therefor, which was confirmed. (4) The defendant, Rhoda Childs, was not made a party to said foreclosure proceedings. (5) Lispendens in said foreclosure proceedings was filed on July 8th, 1901. (6) The rental value of the property is about $4 per month, and the value of the property is about $300. (7) The defendant is worth nothing over the value of a homestead, but it is not alleged that the mortgagor is insolvent nor does it appear the property is an insufficient security for the mortgage debt, the amount of which is not stated.
The reasons given by the Circuit Court for the order appointing a receiver to collect rents, manage, insure and preserve the property pending litigation, are as follows: "At the hearing I was in doubt about who held the legal title, the plaintiff or the defendant; but upon consideration thereof, the matter is plain to me. The mortgage to plaintiff and the foreclosure thereof, would operate to convey the fee, had Williams not made a deed to defendant. The mortgage put the fee where a Court could lay hands on it to subject it to the payment of the debt. It was beyond the reach of the mortgagor to alienate by deed. The mortgagor only sold that which she had a right to, to wit: the right to pay the debt and cancel the mortgage. If the conveyee or the mortgagor still has that right, she can assert it in this action under the allegations of the complaint; it is only an equity.Trimmier v. Vise,
We think the order appointing a receiver was erroneous. Since the act of 1791, what is inaccurately called the "equity of redemption" is the legal estate in the realty subject to the *254
lien of the mortgage debt. When, therefore, the mortgagor, Hattie Williams, conveyed the mortgaged property to defendant, this "equity of redemption," or legal estate subject to the mortgage lien, passed to defendant on March 4, 1901, before the commencement of the action to foreclose the mortgage. The holder of the "equity of redemption," so called, is a necessary party to the action to foreclose the mortgage, and unless made a party is in no wise concluded by the proceedings. Rodgers v. Jones, 1 McC. Eq., 321;S.C. Mfg. Co. v. Price,
The respondent, however, argues that the deed to defendant has never been recorded according to law, because it appears by affidavit that while the deed was spread upon the record in deed book No. 3, page 502, it does not appear upon the direct index to deeds, and such indexing is essential to recording. In the first place, *256
the complaint by implication, at least, alleges that the deed was put upon record on the 28th day of May, 1901, and the Circuit Court finds that the deed was recorded on that day, and no exception has been taken to such finding. This would seem to conclude any inquiry based upon a suggestion that such deed has not been recorded. But if we should consider the affidavit in this regard, the case of Armstrong
v. Austin,
The order of the Circuit Court appointing a receiver is reversed.