5 S.C. 146 (S.C. 1872), Miles v. King

Citation:5 S.C. 146
Opinion Judge:MOSES, C. J.
Party Name:MILES v. KING.
Attorney:Tracy , for appellants. Henderson & Behre , contra.
Judge Panel:BEFORE FARMER, J., Wright , A. J., concurred.
Court:Supreme Court of South Carolina
 
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Page 146

5 S.C. 146 (S.C. 1872)

MILES

v.

KING.

Supreme Court of South Carolina.

May, 1872

         That an execution creditor has notice of an unrecorded mortgage does not affect a purchaser at Sheriff's sale under the execution of the mortgaged land, such purchaser being without notice.

         Where a mortgage given in 1855 was duly recorded, as the law then of force directed, but-the record having been destroyed-was not again recorded, as the Acts of 1866 required, it is void as against a subsequent purchaser for valuable consideration without notice.

         The Act of 1866, directing all instruments of writing which by law were required to be recorded, the records of which had been destroyed, to be again recorded within a time fixed by the Act, or else to be null and void as against subsequent purchasers for valuable consideration without notice, and creditors without notice, does not impair the obligation of contracts, and is a constitutional and valid law.

         BEFORE FARMER, J., AT COLLETON, MAY, 1872.

          This was an action by C. R. Miles and L. D. DeSaussure, against Samuel J. King, C. P. W. King and Caleb Sauls, to foreclose a mortgage of land.

Page 147

          The case was this: In the year 1854, Samuel J. King and C. P. W. King gave to Edward J. Parker their bond for $5,000, and on the 26th May, 1855, to secure the payment of the debt, they executed to Parker their mortgage of a tract of land in Colleton. The mortgage was duly recorded in June, 1855, and a few months afterwards Parker assigned both instruments to the plaintiffs. The record of the mortgage was destroyed in 1865, and it was not again recorded as directed by the Acts of 1866, which provided that " all instruments of writing of which a record or registry is required by law, and of which the record or registry is destroyed or lost, but the original preserved," shall be recorded by the 1st day of December, 1867, " otherwise they shall not prevail as liens against subsequent purchasers for valuable consideration without notice, nor creditors without notice," (13 Stat. 384, 411.) The original had been preserved.

         When the mortgage was given the two Kings were seized of the tract of land, as tenants in common, each being entitled to one undivided moiety. On the 4th August, 1866, the undivided share of Samuel J. King was sold by the Sheriff under execution, in favor of Hull & Co., against Samuel J. King, and purchased by Caleb Sauls, who paid his bid and received a conveyance from the Sheriff. The debt, to satisfy which the sale was made, was contracted in 1860 and 1861. Sauls was a purchaser without notice. He alone answered the complaint, and he put his defense upon the ground that he was a purchaser of Samuel J. King's moiety, for valuable consideration, and without notice. His Honor sustained the defense, and made a decree for the sale of C. P. King's moiety.

         The plaintiffs appealed, on the following grounds:

         First. Because the plaintiffs' mortgage given for the purchase money, having been duly recorded in accordance with the provisions of the Act of 1843, became the paramount lien upon the mortgaged premises; and Hull & Co., who became creditors of the mortgagor, Samuel J. King, in 1861, while the said record was in existence, were subsequent creditors, with notice of the mortgage; and under the judgment recovered by them against the mortgagor could levy only upon his interest, subject to the mortgage, viz: the equity of redemption or right to redeem the mortgage.

          Second. Because the defendant, Sauls, who purchased at the sale under Hull & Co.'s execution, obtained no greater rights, as

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against the lien of plaintiffs' mortgage, than those of the plaintiffs in execution, who were subsequent creditors, with notice of the mortgage.

         Third. Because the due registration of plaintiffs' mortgage was notice to all the world; and the defendant, Sauls, as well as Hull & Co., were affected with notice, and could never become " purchasers or creditors without notice; " and Sauls having purchased only the interest of the mortgagor levied upon under the judgment obtained by creditors with notice, is not " a purchaser for valuable consideration without notice," within the purview of the Acts of 1866.

          Fourth. Because the Acts of 1866, according to their true construction, do not destroy the paramount lien of plaintiffs' mortgage, secured by due compliance with the requirements of the Act of 1843.

         Fifth. Because, if such is the effect of the Acts of 1866, then their " provisions are so unreasonable as to amount to a denial of a right, and call for the interposition of the Court."

         Sixth. Because the mortgagees, by compliance with the requirements of the Acts of the Legislature in relation to the recording of mortgages existing at the time of registration, acquired certain vested rights in the mortgaged premises, which could not be divested by any subsequent exercise of mere legislative will. And if the operation of the Acts of 1866 is to destroy, defeat or postpone rights so vested, then they " impair the obligation of a contract," and are unconstitutional, null and void.

         Tracy , for appellants.

         Henderson & Behre , contra.

         OPINION

         MOSES, C. J.

         Assuming that the mortgage was recorded in conformity with the Act of 1843, the points involved in the grounds of appeal draw in question the validity of the Acts of 1866, (13 Stat. 384, 411,) so far as they are held by the Circuit decree to affect it.

          Sauls presents himself in the position of a subsequent purchaser for...

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