35 S.C. 61 | S.C. | 1892
The opinion of the court was delivered by
The object of this action is to obtain partition of certain real estate in the County of Kershaw, which formerly belonged to Burwell Boykin, and was by his will given to his three sons, Thomas L. Boy.kin. John Boykin, and Eugene Boykin, upon the death of their mother, charged with the payment of certain legacies to their sisters. The mother having died and the two sons, John and Eugene, having died intestate, and the legacies to the daughters having been pi’ovided for, the time for partition of the land has arrived, and the purpose now is to obtain partition amongst Thomas L. Boykin; in his own right and as heir'at law of his mother and of his two deceased brothers, and the other heirs at law of these parties. There is no, contest between the co tenants as to their shares or as to
The only controversy is between certain mortgage creditors of Thomas L. Boykin. Of these there are three practically, though there seems to have been another mortgage to Charlotte Taylor, assigned to A. H. IT. Stuart, which, however, is not represented in this case, and not having been considered by the court below, is not before us. Of the three mortgages which are to be considered, the oldest is a mortgage to Louis D. DeSaussure, which, though assigned to ’the defendants, Pelzer, Rodgers & Co. and A. B. Rose, as trustee, will, for the sake of convenience, be designated as the DeSaussure mortgage. The next in date is a mortgage to the defendants, Witte Bros. The last in date is a mortgage to the defendant, J. A. Armstrong. The DeSaussure mortgage purports to'be a mortgage on 823 acres of land, described by metes and bounds. The Witte mortgage purports to be a mortgage on 2,000 acres of land, more or less, likewise described by metes and bounds, which, it seems to be conceded, does not embrace any of the 823 acres covered by the DeSaussure mortgage; but in the record of this mortgage, doubtless through an error of the 'recording officer, the quantity of land covered by the mortgage is stated as 200, instead of 2,000 acres, more or less. And the Armstrong mortgage purports to be a mortgage on the undivided interest of Thomas L. Boykin in the lands of Burwell Boykin, deceased. Such other facts as may be necessary to a proper understanding of the questions raised by this appeal may be gathered from the master’s reports and the decree of his honor, Judge Hudson, which should be incorporated in the report of this case, as well as from the previous case of Boykin v. Boykin, 21 S. C., 513.
The Circuit Judge held that the 823 acres covered by the DeSaussure mortgage was not the separate property of Thomas L. Boykin, held by him under, a parol gift from his father, as contended for by the present holders of that mortgage; that as to the amount due on that mortgage, the master was right in reducing the rate of interest from 15 to 7 per cent, on the mortgage after the settlement between mortgagor and mortgagee on the 1st
From this decree each of the mortgage creditors except Witte Bros, appeal upon the several grounds set out in the record, which should likewise be embraced in the report of this ease. Without stating these grounds specifically here, we will proceed
1st. Whether there was error in reducing the rate of interest on the debt secured by the DeSaussure mortgage from 15 to 7 per cent, per annum.
2nd. Whether there was error in holding that if upon partition in kind, the 823 acres be allotted to Thomas L. Boykin as his share, the DeSaussure mortgage would be'a lien only on 41-90 thereof.
3rd. Whether there was error in holding that if the land be sold, then only 41-90 of the proceeds of the sale of the 823 acres should be applied to that mortgage.
4th. Whether there was any error in the ruling as to the effect of the mistake in the record of the Witte mortgage.
5th. Whether there was error in not holding that the Witte mortgage was void for uncertainty in the d'escription of the lands covered thereby.
6th. Whether there was error in ascertaining the amount due on the DeSaussure mortgage.
There can be no doubt that where a tenant in common gives a mortgage on a specific part of the common property, describing it by metes and bounds, under a belief that he owned the same in severalty, the mortgagee has an equity to require, when partition is sought by the other co-tenants, that it shall be so made as to allot the specific portion covered by the mortgage as the share of the mortgagor, and thereby save the lien of the mortgage, provided this can be done without prejudice to the rights of the other co tenants; and this equity, where there are several successive mortgages, enures to each mortgagee in the order of the dates of the several mortgages. This is upon the maxim, Qui prior est tempore potior est jure, as well as upon the well recognized doctrine that where a mortgagor has made several successive sales of portions of the mortgaged premises, and the mortgagee comes for foreclosure, the propertj^ must be sold in the inverse order of the sales made by the mortgagor. Norton v. Lewis,
Confining ourselves to the question presented in the l’ecord', we think it clear that a mere mistake in the record of a mortgage as to the number of acres covered by it, especially when the number of acres there stated, as in this case, is accompanied by the
The judgment of this court is, that the judgment of the Circuit Court be modified as herein indicated, and that the case be remanded to that court for such further proceedings as may be necessary.