45 S.C. 393 | S.C. | 1895
Lead Opinion
The opinion of the Court was delivered by
This is an action to foreclose a mortgage on real estate, executed by the defendant, W. D. Trantham, to John R. Falls, on the 25th of September, 1887, and by him assigned to the plaintiff. The facts are fully set out in the decree of the Circuit Judge, which should be incorporated in the report of the case, and we will, therefore, make here only a brief statement of them.
The first lien upon the land was the judgment in favor of Pegues against the defendant, Trantham et al., which was entered on the 7th of June, 1879. The next lien, in the order of date, was the Falls mortgage, which, as just stated, was executed on the 25th of September, 1887. The next was a judgment in favor of Creighton & Son against Trantham, which was entered on the 20th of February, 1888. The next was a mortgage held by the defendants, Baum Bros., executed b}^ Trantham, on the 24th of April, 1888; and the next and last lien was a judgment in favor of Patterson, Renshaw & Co. against Trantham, entered 21st of February, 1891. Upon the judgment of Patterson, Renshaw & Co. an execution was duly issued and levied on the land in question, on the 12th of December, 1892; after
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
dissenting. This was an action to foreclose a mortgage on real estate, executed by the defendant, W. D. Trantham, to one John R. Palls, on
Ever since the case of Vance v. Red, 2 Spears, 90, and even before, it has been uniformly held, that “it is of no consequence under what named execution or judgment the sheriff sells a defendant’s property, the sale is, in virtue of all existing liens of the kind;” and the case goes on to hold that, even when the preceding execution, to which the sale was referred, was marked “Wait orders,” the same rule would apply; the Court saying that, “the intention of such an order is plainly to suspend the active proceeding of the sheriff. It could, at most, amount to the suspension or withdrawal of the execution, not of the lien of the judgment.” This doctrine has been repeatedly recognized since. Agnew v. Adams, 17 S. C., 364; Henderson v. Trimmier, 32 S. C., 269, and Garvin v. Garvin, 34 S. C., 388. So that the question is narrowed down to the inquiry, whether the Pegues judgment was a lien on the land at the time of the sale by the sheriff, under which appellant claims; for, if it was, then, unquestionably, under the authorities above cited, as well as under the express provision of section 744 of the Revised Statutes of 1893, the appellant has the superior title — for that section requires the sheriff to pay over the proceeds of the sale of any real estate sold by him “to any judgment having prior lien thereon;” which necessarily implies that the sale shall be referred to such judgment. Now, the Pegues judgment having been recovered in 1879, prior to the act of 1885, it must be governed by the law as it stood at the date of the recovery of the judgment. King v. Belcher, 30 S. C., 381. Under the law as it then stood (section 310 of the Code of
It seems to us, therefore, that the Pegues judgment being confessedly a lien upon the mortgaged premises at the time the Palls mortgage was executed, retained its priority as such up to the time of the sheriff’s sale at which the appellant purchased, and that, by such purchase, the sale being referable to the Pegues judgment, the appellant acquired a title superior to the lien of such mortgage, and that the Circuit Judge erred in holding otherwise.
It only remains to consider the case of Woodward v. Woodward, 39 S. C., 259, which, it is supposed, is in conflict with the conclusion which we have reached. That ease differs materially from this, in the fact that there the question was as to the rights of a third person, who had become the bona fide purchaser of the land, for value, without notice, after the judgment under which the other parties claimed had lost its active energy, and before it had been revived, and, so far as appears from the case, before any proceedings to revive the judgment had been instituted. In that case a judgment had been entered against one J. P. Woodward, on the 6th of October, 1880. This judgment was revived, on the 9th. of October, 1891, and execution
. For these reasons, I am unable to concur in the conclusion reached by the majority of the Court; and, on the contrary, think that the judgment of the Circuit Court should be reversed, and that the complaint, in so far as it seeks a