Hughes v. Slater
| Decision Date | 07 March 1949 |
| Docket Number | 16190. |
| Citation | 52 S.E.2d 419,214 S.C. 305 |
| Parties | HUGHES v. SLATER et al. Ex parte WILLIAMS. |
| Court | South Carolina Supreme Court |
J M. Brailsford, Jr., T. B. Bryant, Jr., A. J. Hydrick, all of Orangeburg, for appellant.
Moss & Moss and J. Stokes Salley, all of Orangeburg, for respondent.
This is a proceeding to sell certain real estate in the City of Orangeburg for the purpose of satisfying a judgment for $758.22 recovered by J. D. Jones, as administrator of the estate of Lewis E. Williams, deceased, against John D. Slater and Suzanne Carroll Slater. This judgment was entered in the office of the Clerk of Court for Orangeburg County on October 23, 1924. Thereafter on October 22, 1934, a proceeding was instituted to revive said judgment and an order to that effect was issued on November 11, 1935. The revived judgment was entered in the office of the Clerk of Court on August 5, 1936. The question involved is whether the lien of this judgment had expired prior to the commencement of the proceeding now before us.
Under the terms of Section 743 of the 1942 Code, a judgment constitutes a lien on the real estate of the judgment debtor for a period of ten years from the date thereof. There is also set out in this section the procedure by which a judgment may be revived so as to constitute a lien for an additional period of ten years. It is then provided 'that a judgment shall not in any case constitute a lien on any property of the judgment debtor in any county after the lapse of twenty years from the date of the original entry of the judgment.' Although it has no effect on this appeal, we call attention to the fact that Section 743 was amended in 1946, 44 St. at L., page 1436, so that now the lien of a judgment only continues for a period of ten years and may not be revived. In Hardee v Lynch, 212 S.C. 6, 46 S.E.2d 179, 183, the Court said that the logical result of this amendment 'was to utterly extinguish a judgment after the expiration of ten years from the date of entry.'
The lien of the judgment now sought to be enforced would ordinarily have expired on October 23, 1944. This proceeding was commenced on or about July 15, 1947, by the filing of a petition in the case of Jessie C. Hughes, Plaintiff, v. John D. Slater et al., Defendants. Obviously, it cannot be maintained unless the operation of the statute was suspended by the proceedings had in the main cause which we shall now review.
The main action was commenced in 1933 by Mrs. Jessie C. Hughes for the purpose of foreclosing a first mortgage on the real estate in question which was executed by John D. Slater on August 23, 1922. J. B. Robinson was made a party defendant because he held a second mortgage on the premises, which was executed by John D. Slater on October 2, 1922. Various judgment creditors, including John D. Jones, as administrator of the estate of Lewis E. Williams, deceased were also joined as parties defendant. It was alleged in the complaint that these judgment creditors 'have or claim to have a lien on the real estate hereinabove described, junior to that of the plaintiff, by reason of certain judgments against the said John D. Slater, and that they should be required to come into this action and set up whatever right or claim they may have in and to the said real estate or be barred from hereafter doing so.' The defendant J. B. Robinson filed an answer in which he set up the lien of the junior mortgage held by him, alleged that it was past due and that no part thereof had been paid, and asked that his mortgage be foreclosed. This answer was duly served upon both the attorneys for the plaintiff and the attorneys for John D. Slater and Mrs. Suzanne Carroll Slater. The defendant Jones, as administrator, set up in his answer the judgment held by him and after stating that no part thereof had been paid, alleged 'that said judgment is a lien on all the property of the said J. D. Slater and Suzanne Carroll Slater in Orangeburg County, in said State, and is junior only to such liens as may be proven as antedating the judgment herein set up and as not having been paid, or as shall be proven to be entitled to priority, whether antedating the judgment herein set up or not.' The prayer was 'that the rights and priorities of the parties to this action be fixed by this Honorable Court, according to law, and that if there then be sufficient funds to pay his judgment, or any part thereof, after the disbursement of the funds obtained from the sale of the premises herein sought to be foreclosed, to judgment lien holders whose rights are prior to the right of this lien, that same be paid to him or his attorney.' This answer was only served on the plaintiff. No contention is made that it was ever served upon the defendant John D. Slater, who executed the mortgages sought to be foreclosed.
The case was referred to a referee by order dated October 10, 1933. On December 9, 1933, plaintiff and defendant John D. Slater entered into an agreement whereby the property would not be sold provided Slater made certain monthly payments on account of the accumulated interest on plaintiff's mortgage indebtedness and the taxes that were in arrears. A reference was held on February 24, 1934. On March 13, 1934, the referee filed a report in which he recommended that a sale of the property under plaintiff's mortgage be postponed in accordance with the terms of the agreement but that if Slater defaulted in making the monthly installments, plaintiff should have leave to immediately apply for a sale. It was further stated in this report: 'This agreement cannot bind the defenant, J. B. Robinson, and I recommend that the said property may be sold at any time under his mortgage at the request of counsel in the cause representing the said J. B. Robinson.' The referee further stated: In a foreclosure decree dated March 21, 1934, the report of the referee was confirmed and plaintiff was awarded judgment against John D. Slater for the full amount due on his mortgage. The Court authorized a sale of the property upon the application of the plaintiff in the event Slater failed to comply with the agreement above mentioned and it was further ordered that the property could be sold at any time subsequent to October 1, 1934, upon the application of defendant Robinson, who held the second mortgage on the premises. No specific reference to the judgment creditors was made in this decree but it did contain the following provision: 'Should there then remain further proceeds from such sale the same should be held subject to the further order of the Court in order that the rights an priorities of other creditors and parties to this action may be adjudicated.'
On December 4, 1936, the plaintiff's judgment was assigned to the defendant J. B. Robinson who then held both mortgages on the premises. The monthly payments which had theretofore been paid by Slater to the plaintiff were thereafter paid to Robinson. Robinson died in August, 1938, and in the settlement of his estate the mortgage indebtedness heretofore mentioned was assigned to his children. On September 13, 1944, these children filed a petition in the foreclosure proceedings asking that they be substituted as plaintiffs and for an order of reference to determine the amount due on the mortgage indebtedness. John D. Jones died prior to the filing of this petition and apparently it was not served on anyone interested in the Jones judgment. On September 21st, an order was duly passed substituting the children of Robinson as plaintiffs and referring the case to a special referee. On April 16, 1945, the referee filed a report in which he concluded that the Hughes judgment which had been assigned to Robinson was barred by the statute of limitations, but that the substituted plaintiffs were entitled to have the property sold to satisfy the amount due on the second mortgage. On August 22, 1945, a decree was entered confirming the report of the referee, adjudging the amount due on the second mortgage and directing that the property be sold to satisfy same. On appeal to this Court, it was held, Hughes et al. v. Slater, 209 S.C. 168, 39 S.E.2d 509, that the judgment representing the amount due on the first mortgage was not barred by the statute of limitations. Accordingly, the decree of the Court below was modified and the case remanded for further proceedings.
During the pendency of the above appeal to the Supreme Court, John D. Slater died on June 18, 1936, leaving a will whereby he devised all of his property to his widow, Suzanne Carroll Slater. She qualified as executrix on August 19, 1946, and was substituted as a party defendant in the place of her husband. After the filing of the decision of the Supreme Court, Mrs. Slater satisfied the indebtedness represented by the two mortgages which were then cancelled of record on October 23, 1946.
The respondent on this appeal, Agnes E. Williams, was appointed administratrix d. b. n. of the estate of Lewis E. Williams deceased, and as such is now the holder of the judgment formerly recovered by John D. Jones, as administrator. On August 2, 1946, she issued execution of this judgment and on the same day a nulla bona return was made. On July 15, 1947, the proceeding now before us was commenced by the filing of a petition in the foreclosure proceedings by said...
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