Bleckley v. Branyan

• Decision Date: 19 April 1887
• Parties: BLECKLEY and others v. BRANYAN and others.
• Court: South Carolina Supreme Court

2 S.E. 319

26 S.C. 424

BLECKLEY and others v. BRANYAN and others.

Supreme Court of South Carolina

April 19, 1887

Appeal from circuit court, Abbeville county.

B. F Whitmer & Son, for Bleckley and others, appellees.

McGOWAN J.

At the February term of the court for Abbeville, in 1885, A. T Armstrong and Sarah J. Martin, as administratrix, each recovered judgment against their co-defendant, D. S. Branyan. Under the executions in these cases the sheriff levied on 200 acres of land as the property of Branyan, the defendant in execution, and was about to sell the same on sales-day of December of that year, when the plaintiffs commenced this action to enjoin the sale, upon the ground that the land levied on was not the property of the defendant Branyan, and the following facts were admitted: (1) That, some time previous to 1885, the defendant Branyan executed mortgages of the same tract of land, two or more to the plaintiffs, and another to one H. P. McGhee, to secure debts due by him to the mortgagees respectively. These mortgages were regularly recorded in the proper office at Abbeville. (2) That on January 15, 1885, the plaintiffs, who live in Anderson county, inquired of Mr. Du Pre, the sheriff of Abbeville county, by letter, whether there were any judgments against Branyan, and were informed that there were none, but, as before stated, the judgments were soon after (February) recovered and entered. (3) That on April 21, 1885, after the rendition of the judgments, the defendant Branyan conveyed by deed the tract of 200 acres to plaintiffs, [mortgagees,] subject to the mortgage of H. P. McGhee, and in satisfaction of $1,709.32 of plaintiffs' debt, -- the residue being secured by Branyan's wife. In this transaction (the plaintiffs expecting to have to pay the McGhee mortgage) the land was estimated at the value of $2,215, which was a fair and full price for the same. That plaintiffs thereupon delivered their said notes and mortgages to the said Branyan and caused the said deed of conveyance to be recorded in the clerk's office on April 23, 1885. At the time of this transfer, plaintiffs were ignorant of any other liens upon the land, and received from the said Branyan the following written assurance:

" South Carolina, Anderson County. I, D. S. Branyan, having this day sold and conveyed to Bleckley, Brown & Fretwell a certain tract of land in Abbeville county, containing two hundred acres, guaranty and represent hereby that no other liens exist against the said land, except one mortgage in favor of Mr. McGhee, in which there was a balance of $506, due on January 1, 1885; this settlement made to-day, being based on this statement.

"Witness my hand and seal this April 21, 1885.

[Signed] "D. S. BRANYAN. [L. S.]

"In presence of J. H. VON HASSELN."

Upon this state of facts, the circuit judge, holding that this case is analogous to that of Agnew v. Railroad Co., (lately decided and not yet reported,) decreed that, "to the extent of the price paid by the plaintiffs to Branyan for the land, their mortgages, still uncanceled on the record, be set up as subsisting liens thereon as against the judgments of the defendants and prior thereto, and granted a perpetual injunction against the sheriff and the judgment creditors, enforcing the executions and selling of anything more than the equity of redemption of said Branyan in the lands."

From this decree the appeal comes to this court upon the following grounds: "(1) Because his honor erred in holding that upon the statement of facts agreed upon, the plaintiffs were entitled to the relief prayed for; (2) because his honor erred in holding that it was not the intention of the parties that the legal and equitable title should merge in the plaintiffs so as to open the way for the enforcement of intervening liens; (3) because his honor erred in holding that the contemporaneous instrument of writing was equivalent to a covenant or stipulation that, as against any existing liens, the plaintiffs should not have the advantage of their prior liens; (4) because his honor erred in not holding that the plaintiffs had notice of the existence of intervening liens in the records of the judgments of the defendants in the clerk's office for Abbeville; (5) because his honor erred in holding that the plaintiffs were not careless or negligent in their inquiry as to existing liens; (6) because his honor erred in not holding that the transfer by the mortgagor to the mortgagees extinguished the latter's lien, which could not be revived by subsequent proceedings so as to defeat the liens of judgment creditors; (7) because his honor erred in not holding that, when the mortgagees took from the mortgagor a conveyance of the entire mortgaged property, the transfer extinguished the mortgage debt, and merged the fee and equitable estate in the same persons; (8) because his honor erred in not holding that, although there may be fraud in the mortgagor, equity will...