Forest Lawn Co. v. City of Goose Creek
| Decision Date | 11 June 2007 |
| Docket Number | 2007-MO-036 |
| Parties | Forest Lawn Company, Appellant, v. City of Goose Creek, Respondent. |
| Court | South Carolina Supreme Court |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
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.
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.
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 erroneous.
In 2005, Appellant filed a complaint in Berkeley County alleging, inter alia, (1) the deed conveying property to Respondent is void insofar as it relates to lots 80-83; (2) the Master's deed conveying property to Respondent's predecessor-in-interest, Millwright Services, as a result of the foreclosure action erroneously included lots 80-83 and was, therefore, void; and (3) Appellant is the rightful owner of lots 80-83. The trial court granted Respondent's motion for summary judgment, holding the deeds in dispute are not void because the foreclosure action from which they originate is not void. The trial court also found Respondent qualified for protection under the bona fide purchaser doctrine, and Appellant's failure to address the alleged error of the deed for almost ten years rose to the level of laches and waiver, which bar the action. Appellant responded by filing this appeal.
I. Did the trial court err in holding the Master had authority to effect the sale of the property when lots 80-83 had been released from the mortgage?
II. Did the trial court err in finding Respondent was a bona fide purchaser?
On appeal from an order granting summary judgment, the appellate court applies the same standard that governs the trial court. David v. McLeod Reg'l Med. Ctr., 367 S.C. 242, 626 S.E.2d 1 (2006). A trial court may properly grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 56(c), SCRCP; Pittman v. Grand Strand Entm't, Inc., 363 S.C. 531, 611 S.E.2d 922 (2005). The appellate court, like the trial court, must view all ambiguities, conclusions, and all inferences arising in and from the evidence in a light most favorable to the non-moving party below. Osborne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001).
The trial court held the conveyance of lots 80-83 under the Master's deed was valid and, in doing so, mistakenly focused on subject matter jurisdiction. Whether the Master's judgment was a proper exercise of jurisdiction is not an issue. Rather, the issue is whether the Master had authority to effect the sale of lots 80-83 when the lots had previously been released from the mortgage. We hold the Master did not have such authority.
It is well settled that a deed cannot convey an interest which the grantor does not have in the land described in the deed, even though by its terms the deed may purport to do so. Cummings v. Varn, 307 S.C. 37, 42, 413 S.E.2d 829, 832 (1992) (citing Griggs v. Griggs, 199 S.C. 295, 19 S.E.2d 477 (1942)). This long-standing principle applies with equal force to the foreclosure of a mortgage and title conveyed under a Master's deed. [2] The Master's deed could not convey title to lots 80-83 because those lots were no longer subject to the mortgage. The erroneous inclusion of lots 80-83 in the Notice of Sale and deed does not change this fact. Therefore, the trial court erred in granting Respondent's motion for summary judgment and determining the Master's deed conveyed title of lots 80-83 to Respondent.
Appellant argues the trial court erred in granting summary judgment to Respondent based on the alternative...
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