Fowler v. Smith

• Decision Date: 16 October 1889
• Citation: 31 S.C. 398,10 S.E. 93
• Parties: Fowler et al. v. Smith.
• Court: South Carolina Supreme Court

10 S.E. 93

(31 S.C. 398)

Fowler et al.

v.Smith.

Supreme Court of South Carolina.

Oct. 16, 1889.

Judgment—Satisfaction.

A vendor, against whom two judgments had been recovered, conveyed land subject thereto. Afterwards he purchased and took an assignment of the senior judgment. Held, that the senior judgment was thereby extinguished, and could not be assigned by the vendor to his vendee so as to protect the latter against the junior judgment.

Appeal from common pleas circuit court of Spartanburg county; J. B. Kershaw, Judge.

Carlisle & Hydrick, Bomar & Simpson, and Nicholls & Moore, for appellants. J.S. R. Thomson, for respondent.

McGowan, J. In 1873, one B. T. Wood filed his petition in bankruptcy. At the time there were several judgments against him; the oldest, that of A. L. Moore, for $1,252, and the next in priority that of the plaintiffs, Fowler, Foster & Co. In these bankruptcy proceedings a certain tract of land was set off to the petitioner, Wood, as his homestead, and was held by him until 1879, when he sold the land to M. F. Smith, and he afterwards sold it to respondent, his wife. On July 23, 1874, Wood was discharged in bankruptcy; but it seems that both of the judgments above described were founded on causes of action which were in existence before the adoption of the constitution, (1868,) and, fearing that the assignment of homestead would not stand as against these judgments, the said Wood, before his discharge, paid to A. L. Moore $125 for his judgment, and took an assignment of it from him in the following words: "For value received I hereby assign to B. T. Wood the above judgment, without recourse on me. [Signed] A. L. Moore. [Seal.] " In 1886, T. E. Moore, the owner of the judgment of Fowler, Foster & Co., had it renewed by order of court, and on March 19, 1887, the folio wing paper was signed and delivered to Mrs. E. J. Smith: "For value received I hereby assign to Elmira J.Smith the above judgment, without recourse on me. [Signed] B. T. Wood. [Seal.]"

In August, 1887, the land was sold by the sheriff under plaintiff's judgment, and was bid off by respondent, Mrs. Smith, for$705. Respondent refused to pay her bid, claiming that her judgment (the A. L. Moore judgment) was still alive, and, as it was the older judgment, was entitled to credit the purchase money thereon. This proceeding was then begun by rule on the sheriff, and Mrs. Smith was made a party. She was made a party defendant, and the referee, to whom all issues were referred, found that the judgment claimed by respondent had been paid, and that the plaintiffs were en titled to have the purchase money paid in by Mrs. Smith, and applied to their judg-merit. On exceptions filed, Judge Kershaw overruled this report and dismissed the proceedings. From this decree the appeal comes to this court upon the following exceptions: "(1) In not holding that the judgment now claimed by the defendant, Mrs. Smith, has been paid by lapse of time. (2) In holding that B. T. Wood, under advice, bought the oldest judgment against himself from Dr. A. L. Moore, with a view to protect the title to his homestead; and in not holding, if there was any evidence at all tending to show such purpose and such advice, that same was incompetent, and should not have been considered. (3) In holding that plaintiff's judgment never had lien on the land sold by the sheriff, except in subordination to the judgment now claimed by Mrs. Smith, the defendant. (4) In holding that the original judgment debt-or, B. T. Wood, had the right to purchase and keep open against himself, to the prejudice of his junior judgment creditors, the Moore judgment, and in holding, further, that such conduct did not injure said junior Judgment creditor. (5) In not holding that the moment the money was paid to A. L. Moore for said judgment, and the same was assigned to Wood, it was paid by operation of law, and never afterwards constituted a lien on said land. (6) In not holding that from the time of such so-called assignment in 1874, up to March, 1887, the said judgment was not kept open by Wood, but was intended to be, and was, paid and satisfied, and the pretended assignment of it in 1887 could not revive its lien. (7) In not sustaining the report of the referee, and overruling the defendant's exceptions thereto, " etc.

The assignment of the homestead, as against the judgment...