Ex parte Jones

• Decision Date: 30 July 1896
• Citation: 25 S.E. 285,47 S.C. 393
• Parties: Ex parte JONES v. BEECHAM et al. ALMA LUMBER CO.
• Court: South Carolina Supreme Court

25 S.E. 285

47 S.C. 393

Ex parte JONES

ALMA LUMBER CO. v. BEECHAM et al.

Supreme Court of South Carolina

July 30, 1896

Appeal from common pleas circuit court of Abbeville county; Joseph H. Earle, Judge.

Action by Alma Lumber Company against Hessie A. Beecham and others to foreclose a mortgage. The case was referred to a master to determine the priority of liens, and, upon confirmation of his report, the property was ordered sold. Benton W. Jones petitioned for an order setting aside the judgment of foreclosure, which was refused, and the petitioner appeals. Affirmed.

Saml. C. Cason, for appellant.

Haynsworth & Parker, for respondents.

JONES J.

The petitioner (appellant), at the January term of court for Abbeville county, on petition, affidavits, and notice to respondents, moved Judge Earle for an order setting aside, so far as a petitioner was concerned, a judgment of foreclosure rendered in the above-stated case at the June term, 1895. Relief was sought upon the ground of "the unauthorized act and mistake of Messrs. Graydon & Graydon petitioner's attorneys in said suit, by which the petitioner's mechanic's lien on certain property described in the petition and affidavit herein was subordinated to certain junior liens of F. T. Miles and the Peidmont Savings and Investment Company, in the distribution of said property ordered to be sold by the said judgment of foreclosure." The Alma Lumber Company had foreclosed a mortgage on the property of Hessie A. Beacham, and the appellant and respondents were all made parties defendant they claiming liens on the property. The respondents here answered in that case, setting up their liens, and claiming priority over the lien of the plaintiff, of the said defendant Jones, and of the other defendants; while the defendant Jones alleged that his mechanic's lien was second only to the lien of Parker & Haynesworth. The petition in fact states that the suit was begun "for the purpose of setting priorities of various liens on the property described in the complaint, and for the purpose of selling it to satisfy the liens." The petition also states that Messrs. Graydon & Graydon were the attorneys for the petitioner, the defendant Jones in that suit. The issues of the foreclosure suit were referred to a referee. All parties in person or by attorneys, were present before the referee the petitioner being represented by Messrs. Graydon; and a report was agreed on by all parties, after concessions were made by some of the parties. This agreement and report ranked the liens upon the whole property as follows: First, mortgage of F. T. Miles; second and third, mortgages of the Peidmont Savings & Investment Company; fourth, mortgage of Parker & Haynesworth; fifth, mechanic's lien of petitioner seventh and eighth, two other mortgages. By this arrangement, the defendant Jones, claiming a lien on a part of the premises sought to be foreclosed, second to the lien of Parker & Haynesworth, was allowed a lien on the whole property, next to Parker & Haynesworth, but fifth in order. Furthermore, no contest was made as to the defendant Jones' claim of mechanic's lien by this arrangement, whereas it was a disputed matter, or disputable matter, since B. K. Beacham, the husband of Hessie A. Beacham, and her agent and manager in the construction of the houses upon which the lien was claimed, submitted an affidavit on the motion before Judge Earle to the effect that the mechanic's lien had not been filed on time, as required by law, to constitute it a lien. It appears from the affidavit of Mr. Lewis W. Parker that the terms of this agreement were communicated to the petitioner on the day it was consummated, and no objection was made thereto. It appears also in the petition that the petitioner was informed by his attorneys that matters had been satisfactorily adjusted. The referee's report was confirmed by the circuit court; judgment of foreclosure rendered; the property sold; but, contrary to the expectation of all parties, the property brought sufficient to pay only the liens prior to the petitioner's. The petitioner did not attend the sale, and expressed dissatisfaction with the arrangement made for the first time after the sale. The mistake of the attorneys alleged as ground to set aside the consent decree was that the attorneys thought the amount of the lien placed ahead of petitioner's lien was $3,500, whereas they are now found to be $3,700, ano, further, because the...