152 S.E. 410 | S.C. | 1930
Lead Opinion
March 13, 1930. The opinion of the Court was delivered by Action by the National Bank of Newberry to foreclose a mortgage upon real estate given to it by the defendant Mills M. Livingston on March 18, 1926, to secure a note for $5,806.54, dated on that day and due October 15, 1926, with interest after maturity at 8 per cent. per annum and 10 per cent. attorney's fees. The mortgage was duly recorded on the day of its delivery, March 18, 1926. The mortgaged premises were a tract of land containing 428.11 acres, made *278 up of three separate tracts: One of 163.9 acres; another of 156.43 acres; and a third, known as the Cooley place, of 117.8 acres. The present controversy has arisen in reference to the last-named tract, the Cooley place.
The defendants are:
1. John N. Livingston — an accommodation indorser of the note of the bank.
2. R.E. Livingston — also an accommodation indorser.
3. J.P. Icard — the grantee under a deed of Mills M. Livingston, dated March 6, 1925, of the standing timber upon the 117.8 acre tract, the Cooley place, in consideration of $5,000.00 cash. This timber deed, though dated March 6, 1925, was not recorded until September 18, 1926.
4. The First Carolinas Joint-Stock Land Bank of Columbia — the holder of a mortgage given to it by Mills M. Livingston, dated March 15, 1926, upon the three tracts referred to, to secure a note for $7,000.00, dated on that day, and payable in certain installments, with interest and attorney's fees. This mortgage was duly recorded on March 18, 1926.
5. The Read Phosphate Company — presumably a judgment creditor, as to which there appears no reference in the transcript or elsewhere.
The timber deed from Livingston to Icard, dated March 6, 1925, was not recorded, as stated, until September 18, 1926, after the mortgage to the land bank, dated March 15, 1926, and the mortgage to the Newberry bank, dated March 18, 1926, had been given and duly recorded; the relative priorities would, upon the face of the transaction be: (1) The land bank mortgage upon all three tracts: (2) the Newberry bank mortgage upon all three tracts; and (3) the J.P. Icard deed to the timber upon the Cooley place.
Icard, however, contends that both the land bank and the Newberry bank, at the times of the execution and delivery to them respectively of the mortgages set up by them, had knowledge of the execution and delivery by Livingston to *279 him of the timber deed, or notice of such facts as would, if pursued with due diligence, have imparted that knowledge to them. He therefore claims that his deed has priority over the mortgages, so far as the timber on the Cooley place is concerned. Both banks deny Icard's contention.
The case was referred to H.K. Boyd, Esq., clerk of Court, and on December 27, 1928, he filed a report, holding that neither the land bank nor the Newberry bank had any notice of the Icard timber deed, and that their mortgages were entitled to priority over it, the land bank first, and the Newberry bank next.
Upon exceptions to this report by Icard, the matter came on to be heard by his Honor, Judge Featherstone, who, on January 9, 1929, filed a decree sustaining the conclusion of the clerk as to the Newberry bank, but reversing it as to the land bank, holding that Icard was entitled to priority over the land bank mortgage, as to the timber on the Cooley place, by reason of the knowledge of the land bank of the prior execution of the timber deed. From this decree both Icard and the land bank have appealed; Icard being appellant as to the Newberry bank mortgage, and respondent as to the land bank mortgage; the land bank being appellant as to the priority over it of the Icard timber deed; and the Newberry bank being respondent as to the priority of its mortgage over the Icard deed; no question being made of the priority of the land bank mortgage over the Newberry bank mortgage.
It appears that after the execution by Livingston of the timber deed to Icard on March 6, 1925, to wit on May 6, 1925, Livingston had given a mortgage upon the Cooley place to Mrs. Wheeler, to secure a note for $1,000.00 dated on that day and due May 6, 1926, with interest from date, and attorney's fees. The mortgage contained the following recital after a description of the Cooley place: "Same being the identical tract of land * * * on which I recently *280 sold to J.P. Icard the standing timber and this mortgage isjunior to said timber deed."
It was recorded on the day of its execution and was satisfied on March 19, 1926, two months before the maturity of the note. The dates of the land bank mortgage, March 15, 1926, of the Newberry bank mortgage, March 18, 1926, and of the satisfaction of the Wheeler mortgage, March 19, 1926, being so nearly contemporaneous, it is fair to assume that the Wheeler mortgage was satisfied out of the funds loaned by the two banks, and naturally both banks knew of its existence. At any rate it was recorded, and, being an incumbrance upon the property proposed to be mortgaged to the banks, it was a matter that affected the equitable interest which they proposed to acquire, and, while not strictly a link in the chain of title to the real estate, it was a necessary subject of inquiry in connection with the proposed loans.
In the mortgage of Livingston to the Newberry bank upon the three tracts aggregating 428.11 acres (which included the Cooley place), occurs this statement: "The above mentioned and described land is the identical tract of land described in a mortgage executed by the said Mills M. Livingston to The First Carolinas Joint Stock Land Bank of Columbia, S.C. for Seven Thousand Dollars, bearing date the fifteenth day of March, 1926, and recorded in the office of the Clerk of Court for Newberry County, S.C. in Mortgage Book `38,' at page. . . . , and this mortgage is given and accepted by the parties hereto as and for a second and junior lien on said tract of land."
We do not think that anything could be added to the reasoning and conclusion of his Honor, the Circuit Judge, that the land bank is chargeable with notice of the Icard timber deed; his decree in this respect is affirmed.
II. In regard to the conclusion that the mortgage of the Newberry bank has priority over to the Icard timber deed, the matter is not at all free from doubt. The first anomaly that presents itself is that the decree awards the Newberry *281 bank the first lien upon the timber on the Cooley place; the Icard deed the second claim, and the land bank the third.
The Newberry bank cannot enforce this priority over the land bank to the timber on the Cooley place, for it has expressly agreed in its mortgage that the land bank should have priority over it to the entire Cooley place, which of course includes the timber; and, the decree holding that the Icard timber deed has priority over the land bank mortgage to the timber, it would seem to follow that Icard has the first claim to the timber.
III. Passing this complication, however, the main issue in reference to the adjudicated priority of the Newberry bank mortgage over the Icard timber deed is whether the recital in the Wheeler mortgage of the existence of that deed was sufficient notice to the Newberry Bank of the existence of the Icard timber deed or of such facts as were sufficient to put the bank upon an inquiry which would have fully developed that fact.
There can be but little doubt after the decision of Moylev. Campbell,
It is there held: "The law imputes to a purchaser of real estate notice of the recitals contained in the written instruments, forming his chain of title (20 R.C.L., 353, § 15;Cordova v. Hood, 17 Wall, 1,
The vital question is whether an unsatisfied, recorded mortgage, which contains a recital of a fact affecting the title under examination, can be considered a link in the chainof title, a muniment of the title, or, if not, whether the principle announced should be extended to include such a mortgage, not strictly such link or muniment, but a subject of imperative inquiry in tracing the title under investigation. In either event the person interested in the examination of the title is charged with notice of the recital and of the ultimate fact which a prosecution of such notice would develop.
There is and can be no question but that the Wheeler mortgage, having been duly recorded, was constructive notice of its existence to the Newberry Bank, if it did not as a fact have actual knowledge of it, which under the circumstances can hardly be denied; the inquiry is whether that notice, actual or constructive, extends, to the recital in the mortgage, the fact of the existence of the Icard timber deed.
It is to be borne in mind that at the dates of the land bank and Newberry bank mortgages, the Wheeler mortgagewas open on the books unsatisfied; a fact which not only made its record constructive notice to the Newberry bank of its contents, including recitals, but imposed upon it the duty of an inspection of that record as bearing upon the title to be deduced. It has been held, we think correctly, although it is not necessary now to so decide, that a proposed mortgagee is not bound to go back over the records of satisfied mortgages to look for recitals therein. 23 R.C.L., 219. We think that the execution of the two bank mortgages and the satisfaction of the Wheeler mortgage were for all practical purposes to be considered as synchronous. The bank mortgages were not intended to become effective until the Wheeler mortgage was satisfied, and that could not be done until the loans had been perfected with the proceeds of which the Wheeler mortgage was to be satisfied, demonstrating that the parties were fully informed of the existence of the Wheeler mortgage. *283
Common prudence requires a prospective purchaser or mortgagee to examine the title to property, which necessarily includes, not only the regularity of the title, but its freedom from prior incumbrances. The duty is as imperative in the one case as in the other. It follows that every prior conveyance or mortgage, duly recorded, unsatisfied of record, constitutes constructive notice to him, not only of the actual conveyance or incumbrance, but of the recitals which affectthe title.
In Simmons Creek Coal Co. v. Doran,
In Northwestern Bank v. Freeman,
In 20 R.C.L., 353, it is said: "Where a person is charged with notice, or actually knows, of an instrument, he is also charged with notice of all facts appearing on the face of the *284 instrument or to the knowledge of which anything thereappearing would conduct him."
And in 23 R.C.L., 216: "The rule supported by the best authority is that the record is constructive notice to creditors and subsequent purchasers of such facts as they would have learned from the record, if examined. A purchaser or mortgagee is chargeable with notice of the conditions and recitals contained in all the recorded instruments forming his chainof title, and the extent of the title conveyed or otherwiseaffected, but not that a grantee or mortgagee has any greater interest than that appearing in the recorded instrument. This principle not only applies to recitals in deeds and mortgages, but includes those in wills and other records without which the title could not be deduced."
In 41 C.J., 562, it is said: "A person affected by the constructive notice which the record of a mortgage or declaration of trust affords, is chargeable with knowledge of allsuch facts as are specifically set forth or recited in the instrumentsrecorded, including the legal consequences and effect of its various provisions, and also according to some of the authorities, of all such facts as would have been disclosed by a proper investigation, starting from the mortgage as a point of departure — provided it is a mortgage by one in the chainof title."
In 1 Jones on Mortgages (7th Ed.), § 524, it is said: "Amortgage duly recorded is notice not only of the existence ofthe mortgage, but of all its contents, so far as those fallwithin the line of the chain of title. * * * It is notice of a prior unrecorded mortgage referred to in the covenant against incumbrances. It is notice not only to purchasers but to the subsequent creditors as well. * * * The record imparts notice of all the facts which could have been ascertained by an actual examination thereof, including not only those recited in the record, but also material matters suggested thereby, which might be disclosed by reasonable inquiry." *285
In note to Lodge v. Simonton, 23 Am. Dec., 48, it is said: "Not only are the recitals in the conveyance under which a vendee holds immediately binding upon him, but he is alsobound to give heed to the recitals in prior instruments whichare necessary to complete his chain of title, and will beaffected with notice of those facts to which such recitalsrefer. This principle applies not only to recitals in deeds and mortgages, but includes those in wills and records, without which the title could not be deduced. This general doctrine is thus stated by Leonard, C., in Cambridge Valley Bank v.Delano,
In Cordova v. Hood, 17 Wall., 1, 8,
In Bank v. Lee,
In Mettart v. Allen,
In Matt v. Matt,
In Kirsch v. Tozier,
In note to 42 Am. St. Rep., 733, Judge Freeman says: "Purchasers of land must be deemed to have examined everydeed and instrument on record affecting their title, and to have notice of every fact disclosed by the record and every other fact which an inquiry suggested by these records would have led up to" — citing McPherson v. Rollins,
In McPherson v. Rollins,
In a note to Pyles v. Brown,
In Whistler v. Cole,
In Bank v. Parsons,
In Anderson v. Reid,
See, also, Keesling v. Doyle,
In Smith v. Lockwood,
In Ochoa v. Hernandez y Morales,
In Mathieson v. Craven (D.C.), 228 F., 345, it was held that purchasers are chargeable with notice of those facts of record, or suggested by record, of which they or their attorneys could not have remained in ignorance, save through failure to observe any proper diligence and care.
In White v. Moffett,
In Loser v. Plainfield Savings Bank,
In Hewling v. Blake,
In Garrett v. Wiltse,
In Maurer v. Friedman,
In Allison v. White,
In Griggs v. Houston Oil Co. of Texas
(Tex.Com.App.),
In Simmons v. Simmons,
In Bank v. Rogers,
In Glover v. Brown,
In Simmons v. Parker,
In Simms v. Thompson,
In Whayne v. Seamans,
In Houston Oil Co. of Texas v. Lane (Tex.Civ.App.)
The situation was simply this: The Newberry bank, proposing to take a mortgage upon the Cooley place and other tracts, was in duty bound to examine the record for liens upon or defects in the title of Livingston to the Cooley place which would affect the equitable lien which it proposed to take; it was not only bound by constructive notice through the record of the Wheeler mortgage of that mortgage and of the recitals therein contained, but it had actual notice of that mortgage, and was bound by all that appeared in it.
The Newberry bank authorized Mr. Workman to draw up the mortgage which it proposed to take from Livingston; in that matter he acted as agent of the bank though without compensation from it, looking to Livingston therefor; he was informed of the Wheeler mortgage containing the recital referring to the Icard timber deed, and his knowledge is imputable to the Newberry bank. Mr. Workman testified: "My firm represented Mr. M.M. Livingston in the negotiation of a loan for him from the First Carolinas Joint Stock Bank. I prepared the abstract for said bank. At the time the *291 loan was consummated, The National Bank of Newberry having decided and agreed to take the second mortgage, and knowing that I had prepared the abstract for the Land Bank, requested Mr. Livingston to have a second mortgage prepared, and suggested that inasmuch as I was handling the matter that I prepare the mortgage."
We think therefore that the decree of his Honor, the Circuit Judge, is erroneous in holding that the Newberry bank is not chargeable with knowledge of the Icard timber deed.
The judgment of this Court is that the decree of the Circuit Court be modified as herein indicated, and that the case be remanded to that Court for such further orders as may be consistent with the conclusions announced.
MR. ACTING ASSOCIATE JUSTICE SMITH concurs.
MR. CHIEF JUSTICE WATTS concurs in result.
MESSRS. JUSTICES BLEASE and CARTER did not participate.
Dissenting Opinion
I regret that I am unable to concur with the leading opinion in this case and I will state the reasons for my dissent.
The statement of facts contained in the opinion of Mr. Justice Cothran are in the main correct as to material points except as to a statement on pages 2 and 3 that the Icard deed covers the timber on the Cooley place. This is a perfectly natural mistake, as will be shown herein, for the reason that the recitation in the Wheeler mortgage stated that the same was the identical tract of land on which Mrs. Livingston had recently sold Icard the standing timber, and not two other tracts.
Under the law, as I understand it, there are two classes of notice with reference to real estate. The first is commonly known and designated as constructive notice and is that notice which is imputed to a person by reason of the recording of an instrument which is permitted or required to be recorded. Under constructive notice it makes no difference whether the person whom it affects knew of the recorded instrument *292 or not. The mere recording is sufficient to put all persons upon notice, as a matter of law, of its existence, its terms, and contents. Constructive notice of an instrument being a matter of statutory enactment, this Court has held repeatedly that, for it to be binding upon any one, the instrument must not only be recorded, but it must be in such condition that it is entitled to be recorded as a matter of law under the terms of the statute. The reason for this rule is apparent. This being a right conferred by statute and in derogation or limitation of the common law, the statute must be strictly complied with in every respect, and failure to comply strictly makes the attempted recording not operate as notice as a matter of law. It has been uniformly held by this Court that, where an instrument is not probated properly, even though it is recorded in the proper book, it does not constitute constructive notice.
Up to the Act of 1888 (20 St. at Large, p. 15) there had been adopted by the Supreme Court a rule that possession of real estate was in itself constructive notice of a claim to said real estate. The Supreme Court so ruled in a number of cases, and the Legislature, evidently feeling that the doctrine of constructive notice had been improperly enlarged, passed the Act of 1888, now 5313, Vol. 3, Code of 1922, which declares that possession of real estate is only notice of a claim when the notice is of the instrument itself or of its nature and purport. In other words, the Act of 1888 forever abolished the doctrine of constructive notice, except as to duly recorded instruments. Of course, if a person knew of the instrument itself or of its nature and purport, that would be actual notice as a matter of law and would not depend upon any recording, constructive notice, or any other outside fact.
We may, therefore, safely conclude that, since the Act of 1888, the only constructive notice existing in this state is of an instrument properly recorded in the correct book, properly *293 probated, which completely complies with every provision of the recording act or acts.
The second class of notice is actual notice, and we shall dispose of the facts and circumstances through which it is claimed that the National Bank of Newberry had actualnotice of this instrument. The only testimony, considered by the majority opinion, along this line is that Mr. Workman, who drew the mortgage for Livingston to give the National Bank of Newberry, had knowledge of the existence of this paper, which knowledge was therefore imputable to the National Bank of Newberry. The master set forth that no such notice existed as a matter of fact, and this was concurred in by the Circuit Judge. Under the rule of this Court, which has been extant for more than one hundred years, a concurrent finding of a matter of fact in an equity case by the master and the Circuit Judge will not be disturbed, unless such finding is clearly against the testimony. I cannot see how, under any view of the testimony, notice on the part of Workman, who was preparing the mortgage for the mortgagor, could possibly be imputed to the mortgagee. The bar of this state has always taken the position, which has been repeatedly commended by the Supreme Court, that a lawyer cannot serve two clients in one and the same transaction whose interests are at variance. I can think of no case where the interests of the lender and the borrower are not at variance. I do not think that, even if the bank had retained Mr. Workman only to draw the mortgage, that notice which he had would be sufficient to put the Bank of Newberry on notice.
This finding, on the part of the leading opinion, that the bank had actual notice by reason of Mr. Workman's connection in the matter is put at the end of the opinion and is merely an added reason for the reversing of the order of the Circuit Judge, in my opinion. I do not feel that such finding is any more than an additional reason outside of the main issue of the case, and I shall therefore pass on the main issue. *294
The main position in the leading opinion is that the Bank of Newberry had notice, constructive I presume, because Mills M. Livingston, the owner of the tracts of land involved in this dispute, gave a mortgage to Mrs. Leonora C. Wheeler on May 6, 1925, which was properly recorded prior to the Bank of Newberry's mortgage, for the sum of $1,000.00 on a portion of his land commonly called the Cooley place, and in this mortgage stated that this was the same land on which the standing timber was recently sold to Icard, and that the mortgage was junior to said timber deed. That such recital in a collateral instrument not in the chain of title and in which the Bank of Newberry was in no wise interested, as I shall demonstrate, was not sufficient constructive notice to put the Bank of Newberry on inquiry as to the existence, terms, nature, and purport of the Icard timber deed. The first fact that should be kept in mind is that Icard did not have a timber deed on the Cooley place alone, but had a timber deed on two other tracts of land which are involved in this dispute. Therefore, the recitation in the Wheeler mortgage was erroneous, incorrect, and misleading in the first place because it did not correctly state even the tract of land over which the Icard timber deed was alleged to have been given. This mortgage says that it is the same land on which Icard bought the standing timber, whereas as a matter of fact it was only a portion of the land upon which Icard bought the timber and on which Icard is now claiming the timber.
An examination of the alleged timber deed in question discloses that it is really not a fee simple deed to the standing timber, but is simply a lease on the same with the privilege of cutting and removing the same within five years. The habendum clause and the tenendum clause both state clearly and distinctly that the contract is for a period of five years to cut and remove the timber, and a warranty is given for a period of five years only to cut the timber. So, under my construction of the instrument which was given to Icard, although commonly designated as a deed, at best it is a fee *295 defeasible and not a deed in fee simple as would be concluded from the recital in the mortgage. I therefore conclude that the recital in the Wheeler mortgage did not give a correct statement of the nature of the instrument nor of its nature and purport, nor did it give sufficient information of the instrument itself as to place any one on notice as to its nature or purport. I hold that, had the entire timber deed been incorporated in the mortgage, there would still be a serious question as to whether or not it would constitute actual, notconstructive, notice, but, where the meager description of the alleged timber deed is given which admittedly is erroneous in at least two particulars, I cannot see how, under the law, it could possibly constitute notice to subsequent lienees or purchasers.
There is still another reason why the Bank of Newberry should not be charged with notice in this matter. The leading opinion admits that one is not charged with notice of the recitals contained in satisfied mortgages. The Joint-Stock Land Bank was to take a first mortgage on these premises clearing up all liens then existing, including the lien of the Wheeler mortgage, and this mortgage was to be paid before the Land Bank's mortgage could be taken. I think that the Bank of Newberry had a perfect right to conclude that all liens were satisfied, and, although the actual satisfaction was not entered of record until the 20th of March, 1926, the Wheeler mortgage was paid on the 18th of March, 1926, prior to the execution of the mortgage to the Bank of Newberry. Let us see what position the Court is in with reference to this. Suppose the Wheeler mortgage was paid and exhibited to the Bank of Newberry, but was not marked satisfied on the book for some weeks after? Could this Court hold that, where the bank actually saw the paper satisfied, the mere fact that it was still open on the books would be sufficient to charge it with constructive notice of recitals existing not material to the mortgage? I therefore think that, this mortgage having been actually satisfied before the Bank *296 of Newberry's mortgage was taken as a matter of course, there was no duty upon the bank in any event to examine the recital therein.
This leads me to the main contention in the leading opinion, and that is because in the Wheeler mortgage there was an erroneous reference to an unrecorded paper then supposed to be existing that such recital is sufficient to place a person upon inquiry as to the existence of some instrument of like import and nature. If this rule is laid down, it would be wise in the future for lawyers to advise their clients with reference to real estate not to record their deeds, but simply have a recitation made to them in another recorded instrument which would give far more protection and far more notice than the instrument itself. There may be a fatal defect in the deed. It may not be probated. It may not be subject to be recorded. It may not be properly excluded. The description of the land may be totally and fatally defective. The actual terms and conditions of the deed may be against public policy. The deed may cover land which is not subject to be alienated as a matter of law. The deed may be a forged instrument which the clerk would not record. The deed may be supposedly given by a person who at the time of its execution was dead, but these trivial defects will amount to naught, if a recital is contained in a collateral instrument referring to it. Under the leading opinion in this case, when a person has notice of the execution of a paper through a collateral recorded instrument, it is even stronger than the recording of the paper itself.
I have carefully gone over all of the decisions cited by Mr. Justice Cothran, and in my opinion the same are not authority for the proposition that recitals in a mortgage notin the direct chain of title are sufficient to put a subsequent lienee or mortgagee on inquiry as to the existence of some instrument referred to in a collateral mortgage. I heartily concur that all decisions which hold that recitals in a deed, will, judicial decree, or mortgage which constitute an integral *297 link in the chain of title are binding upon all subsequent purchasersand lienees and, in my opinion, an examination of the decisions cited by him will only show this rule and no more.
The case of Moyle v. Campbell,
The case of Simmons Creek Co. v. Doran,
Northwestern Bank v. Freeman,
The citation from 20 R.C.L., 353, is under the question of "Notice" and in no wise affects the question here at issue, in my opinion, as to what constitutes the chain of title. The citation in 23 R.C.L., is under the question of "Records" and under the same head, at page 219, § 80, it is held: "A record of an instrument is constructive notice of those matters only that are required to be stated." It was seen that under this rule, there being no necessity for the recital about the Icard deed, it would not be notice.
The citation from 41 C.J., 562, in which it is expressly held that the paper in question must be in the chain of title.
The citation from 1 Jones on Mortgages (7th Ed.), § 524, in my opinion, merely holds the same thing, that the mortgage must be in the line of the chain of title.
The quotation from 23 Am. Dec., 48, is taken from a note under the case of Lodge v. Simonton, and simply lays down the rule that the chain of title is the governing factor as to binding recitals. It is interesting to note that in this case the question was whether or not under a certain will of Hunter through which Simonton claimed, together with other circumstances, sufficient notice was given of the claim of Lodge as to one-half of the land in dispute. The lower Court held that it was, but the upper Court reversed the decision and granted a new trial on the ground that the description in the will referred to no particular tract, and that the notice was therefore vague and uncertain. It would seem that this case would be authority that vague and certain recitals, even in an instrument in the direct chain of title, are not sufficient to put a person on notice of itself and would not be sufficient to bind a subsequent purchaser. *299
Cordova v. Hood, 71 Wall., 1,
The case of Mettart v. Allen,
Kirsch v. Tozier,
Pyles v. Brown,
Smith v. Lockwood,
Ochoa v. Moralez,
Mathieson v. Craven (D.C.), 228 F., 345, involves recitals in a will creating a charge upon certain funds. A proper examination of the chain of title would have disclosed these facts, and the Court holds that subsequent purchasers had constructive notice thereof.
Hewling v. Blake,
Garrett v. Wiltse,
Allison v. White,
White v. Moffett,
Griggs v. Houston Oil Co. of Taxes (Tex.Com.App.),
Glover v. Brown,
Simmons v. Myers,
Simms v. Thompson,
Houston Oil Co. of Texas v. Lane (Tex.Civ.App.),
Of like import are the cases of Bank v. Lee,
And the other cases and citations are all authority only for the proposition that recitals contained in deeds, mortgages, or proceedings in the direct chain of title are constructive notice to a prospective purchaser.
I think the correct rule is laid down in Pomeroy's Equity Jurisprudence (4th Ed.), Vol. 2, p. 1199 § 626. I quote this entire paragraph to show that this is the general rule, and that no exceptions are noted thereto:
"By Recital or Reference in Instruments of Title — GeneralRule — Wherever a purchaser holds under a conveyance, and is obliged to make out his title through that deed, or through a series of prior deeds, the general rule is firmly established that he has constructive notice of every matter connected with or affecting the estate which appears, either by description of parties, by recital, by reference, or otherwise, on the face of any deed which forms an essential link in the chain of instruments through which he must derive his title. The reasons for this doctrine are obvious and most convincing; in fact there could be no security in land ownership unless it were strictly enforced. The right of such a purchaser is, under our system of conveyancing, confined to the instruments which constitute his chain of title, which are his title deeds, and everything appearing in those instruments and forming a legitimate part thereof is a necessary element of his title. The rationale of the rule is equally clear and certain. Any description, recital of fact, reference to other documents, puts the purchaser upon an inquiry; he is bound to follow up this inquiry step by step, from one *303 discovery to another, from one instrument to another, until the whole series of title deeds is exhausted, and a complete knowledge of all the matters referred to in their provisions and affecting the estate is obtained. Being thus put upon the inquiry, he is conclusively presumed to have prosecuted it until its final result, and with ultimate success. The purchaser's ignorance that a particular instrument forming a link in his chain of title was in existence, and his consequent failure to examine it, would not in the slightest affect the operation of the rule. An imperative duty is laid upon him to ascertain all the instruments which constitute essential parts of his title, and to inform himself of all that they contain."
It is interesting to note that under this section are cited more than a hundred cases sustaining the rule. See, also, Sections 627, 628, and 629 of the same work. I do not think that anything that I could say could add to or take away from the clear and unequivocal quotation of one of the greatest equity text-writers in the entire history of our jurisprudence. This very section is cited in many of the cases referred to in the leading opinion, and seems to have been the compelling authority for a great many of such decisions. I think therefore that the correct rule is as laid down by Pomeroy.
This is a case of novel impression not only in South Carolina but in every other State where I have examined the decisions. The rule will be broader here than in any other State in the Union. In spite of the efforts of the Legislature to confine constructive notice to duly recorded instruments under the statute, this Court will enlarge the doctrine to where Section 5313 is limited at least. The chain of title in South Carolina will include, not only the deeds, wills, decrees, foreclosed mortgages, but will include every collateral instrument, however insignificant, with all of the various recitals therein contained. In this respect the case is certainly one of most novel impression. South Carolina will blaze the *304 trail with respect to constructive notice contained in unessential recitals in collateral instruments.
I think that the recording laws, being creatures of the Statute, should be strictly complied with to give protection, and that a person who negligently fails to record a paper should be denied protection, except in cases of actual notice under the rules laid down by this Court. I do not feel that this Court should place a premium upon Icard's failure to record his timber contract. The clerk's office was open to him, and he was the author of his own destruction. He was the captain of the ship who ignored the compass given by the law and found himself stranded upon the rock of carelessness. He now asks that this Court go out of the channel of the declared law and throw to him the rope of judicial construction to save his vessel. Like the law of the sea, whenever a vessel leaves the channel which is marked and traveled, sooner or later it will reach the rocks and go down by reason of its failure to adhere to the charted course.
I therefore, for the reasons herein stated, respectfully dissent from the leading opinion in this case.
The judgment of this Court should be that the judgment of the Circuit Court be affirmed.
MR. JUSTICE STABLER concurs.