Greenwood Loan & Guarantee Ass'n v. Childs

• Decision Date: 29 July 1903
• Citation: 45 S.E. 167,67 S.C. 251
• Parties: GREENWOOD LOAN & GUARANTEE ASS'N v. CHILDS.
• Court: South Carolina Supreme Court

45 S.E. 167

67 S.C. 251

GREENWOOD LOAN & GUARANTEE ASS'N v. CHILDS.

Supreme Court of South Carolina

July 29, 1903

Appeal from Common Pleas Circuit Court of Greenwood County.

Action by Greenwood Loan & Guarantee Association against Rhoda Childs. From a judgment appointing a receiver pendente lite defendant appeals. Reversed.

Graydon & Giles, for appellant. Caldwell & Park, for appellee.

JONES J.

This appeal questions the propriety of an order appointing a receiver pendente lite in the above action, which was brought to recover possession of a house and lot in Greenwood, S. C or alternatively to bar defendant's equity of redemption if any, therein. Respondent moves to dismiss the appeal upon the ground that notice of intention to appeal was not served in time. The order was filed in the clerk's office of Greenwood county on the 3d day of January, 1902, on which same day notice of the filing was given to one of the defendant's attorneys by delivering the original order with the day of filing indorsed thereon. Notice of intention to appeal was served on the 4th day of January, 1902, 11 days after filing of the order. The statute (section 345, Code Proc.) permits notice of appeal to be given "within ten days after written notice that such order has been granted, or decree or judgment rendered." We do not think that a delivery of the original order, with time of filing indorsed, is a compliance with the statutory method of limiting the time within which to appeal. In the case of Lake v. Moore, 12 S.C. 563, the appellant had actual knowledge of the judgment, having seen and read it in the clerk's office; but the court held that such notice did not operate as a written notice limiting the time of making an appeal. The original order in this case after filing was a paper in the custody of the clerk, and neither plaintiff nor defendant had any right to retain it from such custody; so that the delivery of such a paper to defendant could not be substantially different from defendant's reading such paper in the clerk's office, where it properly belonged. In order to limit the time within which an appeal may be taken, there must be a strict compliance with the terms of the statute. The motion to dismiss the appeal must, therefore, be refused.

The application for receiver was made upon the verified complaint and upon affidavits for and against the appointment. By these the following facts appear: (1) Hattie Williams, on May 3, 1900, executed to plaintiff a mortgage of the real estate in question, which was recorded same day. (2) Hattie Williams executed to defendant a deed conveying the said property on March 4, 1901, which was delivered to the proper officer for record within two or three weeks thereafter, but was not actually transcribed upon the record book until May 28, 1901. (3) An action to foreclose said mortgage was commenced against Hattie Williams on May 22, 1901, resulting in a decree for foreclosure August 9, 1901, and a sale thereunder in October, 1901, at which plaintiff became purchaser for $250, and received the master's deed therefor, which was confirmed. (4) The defendant, Rhoda Childs, was not made a party to said foreclosure proceedings. (5) Lis pendens in said foreclosure proceedings was filed on July 8, 1901. (6) The rental value of the property is about $4 per month, and the value of the property is about $300. (7) The defendant is worth nothing over the value of a homestead, but it is not alleged that the mortgagor is insolvent, nor does it appear the property is an insufficient security for the mortgage debt, the amount of which is not stated.

The reasons given by the circuit court for the order appointing a receiver to collect rents, manage, insure, and preserve the property pending litigation, are as follows: "At the hearing I was in doubt about who held the legal title, the plaintiff or the defendant; but upon consideration thereof the matter is plain to me. The mortgage to plaintiff and the foreclosure thereof would operate to convey the fee had Williams not made a deed to defendant. The mortgage put the fee where a court could lay hands on it to subject it to the payment of the debt. It was beyond the reach of the mortgagor to alienate by deed. The mortgagor only sold that which she had a right to, to wit, the right to pay the debt and cancel the mortgage. If the conveyee or the mortgagor still has that right, she can assert it in this action under the allegations of the complaint. It is only an equity. Trimmier v Vise, 17 S.C. 501, 43 Am. Rep. 624; Agnew v. R. R., 24 S.C. 24, 58 Am. Rep. 237. If the plaintiff has the plain legal title, and the defendant is insolvent, then the plaintiff is entitled to an order appointing a receiver of the property to husband the rents. Beach on Receivers, § 73, et seq." We think the order appointing a receiver was erroneous. Since the act of 1791, what is...