Forest Lawn Co., v. City of Goose Creek, 2007-MO-036

• Decision Date: 11 June 2007
• Docket Number: 2007-MO-036
• Parties: Forest Lawn Co., v. City of Goose Creek
• Court: South Carolina Supreme Court

Forest Lawn Company, Appellant,
v.
City of Goose Creek, Respondent.

No. 2007-MO-036

Supreme Court of South Carolina

June 11, 2007

UNPUBLISHED OPINION

Heard April 18, 2007

Appeal From Berkeley County G. Thomas Cooper, Jr., Circuit Court Judge

J. Jay Hulst, of Williams & Hulst, LLC, of Moncks Corner, for Appellant.

John P. Seibels, Jr., of The Seibels Law Firm, PA, of Charleston, for Respondent.

JUSTICE BURNETT

The trial court granted summary judgment to the City of Goose Creek (Respondent), finding the deeds which purported to convey property to Respondent are not void. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

In 1967, Forest Lawn Company (Appellant) purchased property from Arista Corporation. The property was located in the Colonial Heights subdivision near Goose Creek. Appellant's note was secured by a mortgage on the entire property. The first mortgage was held by Arista. The second mortgage was held by Jack Brickman, the President of Arista, in the amount of $50, 000. In 1977, Arista and Brickman released their liens on lots 80-119^[1] to Appellant after Appellant applied $35, 000 toward the mortgage. The releases were duly recorded in 1977.

Brickman filed a foreclosure action against Appellant for failure to make payments on the note in 1993. At the hearing for the foreclosure action, Brickman testified: "A number of parcels and lots have been released from the lien of my mortgage; and, of course, these would be excluded from the foreclosure proceedings." In 1994, the Master-in-Equity ordered the sale of the property "saving and excepting therefrom, however, such tracts and lots which have heretofore been released from the lien of [Appellant's] mortgage." Millwright Services, a junior lienholder, purchased the property and recorded the deed in 1995. The Notice of Sale signed by the Master included the same language as the Master's order, which provided an exception for certain lots previously released. However, the deed and Notice of Sale specifically included lots 80-83 as part of the property conveyed. Appellant filed a motion to reconsider which was denied.

In 1998, Millwright Services conveyed its interest in lots 80-83 to Respondent under a general warranty deed. Respondent purchased title insurance on the property. After Appellant discovered the conveyance, he repeatedly notified Respondent of his alleged interest in lots 80-83 and provided copies of all the pertinent documents to prove the Master's deed was...