Marion County Lumber Co v. Tilghman Lumber Co.&dagger

• Decision Date: 25 November 1909
• Court: South Carolina Supreme Court
• Parties: MARION COUNTY LUMBER CO. v. TILGHMAN LUMBER CO.&dagger

(84 S.C. 505)

66 S.E. 124

MARION COUNTY LUMBER CO.

v.TILGHMAN LUMBER CO.†

Supreme Court of South Carolina.

Nov. 25, 1909.

1. Judgment (§ 780*)—Execution (§ 266*)— Purchasers at Execution Sale.

The lien of a judgment attaches to the interest of a tenant in common, subject to the right of partition, and purchase under execution on such judgment relates back to the lien of the senior judgment, and invests the purchaser with all the rights of a judgment creditor.

[EM. Note.—For other cases, see Judgment, Cent. Dig. § 1347; Dec. Dig. § 780;* Execution, Cent. Dig. § 760; Dec. Dig. § 266.*]

2. Partition (§ 116*)—Effect on Liens and Incumbrances.

The rule that, for the process of the court to convey lands free from incumbrances, the incumbrancers must be parties to the proceedings, otherwise the purchaser takes subject to the right of the incumbrancers, does not apply to partition, because after partition in kind is made, a judgment against a co-tenant, by operation of law, attaches to his allotted share as of its original lien, or, in case of sale, is transferred to his share in the fund.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 450-453; Dec. Dig. § 116.*]

3. Property (§ 4*)—Standing Timber—Nature of Property.

Standing timber is a part of the freehold. [Ed. Note.—For other cases, see Property, Cent. Dig. § 4; Dec. Dig. § 4.*]

4. Partition (§ 41*)—Plenary Jurisdiction.

Courts do not try actions in piecemeal, but every matter arising in the action is con-eluded by the judgment; and hence the jurisdiction of the court, in an action to partition land upon which there was standing timber, was plenary, and covered standing timber.

[Ed. Note.—For other cases, see Partition, Cent. Dig. §§ 105, 105%; Dec. Dig. § 41.*]

5. Judgment (§ 707*)—Persons Concluded —Persons Not Parties.

Pending partition proceedings, in which the tenants in common and a creditor of one of them were parties, the adult tenants sued the infant tenants as defendants, omitting the creditor in the original case, to obtain the sanction of the court to the carrying out an apparently prearranged contract for the sale of the timber upon the land. Held that, the case not being entitled in the partition action, nor taken in the form of a petition, and motion thereon not being a proceeding in that cause, and not reciting the proceedings up to the time of filing the complaint, with notice given or rule to show cause issued and served, it was not a supplemental complaint in the original cause; and judgment creditors of one of the tenants in common not being made parties thereto, the lien of their judgments on the timber sold was not divested.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 707.*]

6. Appeal and Error (§ 856*) — Review — Matters Not Necessary 'to Decision. Where the equity of plaintiff to an injunction granted by the lower court restraining the appropriating of timber on land fails because of failure of its title, the rule applicable to law cases on appeal governs, and additional grounds for sustaining the verdict set out by it cannot be considered.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. § 856.*]

Appeal from Common Pleas Circuit Court of Marion County; Robt. Aldrich, Judge.

Action by the Marion County Lumber Company against the Tilghman Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed and complaint dismissed.

Willcox & Willcox and Montgomery & Lide, for appellant.

Knox Livingston, J. W. Johnson, and M. C. Woods, for respondent

GREEN, A. A. J. This is an action to enjoin the defendant appellant from cutting, felling, and appropriating timber upon certain lands in Marion county, and for damages for trespasses already committed. The defendant admitted the cutting and appropriating of the timber upon the Fred Dew tract, sets up title thereto, but denies any trespass upon the other lands described in the complaint. The cause came on for trial upon the issues of title before his honor Judge Robert Aid-rich and a jury, at spring term, 1908, of the court of common pleas for Marion county. During the trial the plaintiff failed to prove any trespass upon the lands described other than the Fred Dew tract; and, the defendant making no claim to the other lands, they were eliminated from the case. At the conclusion of the testimony the court being of the opinion that the plaintiff had shown the better title to the Fred Dew tract, instructed the jury accordingly, and submitted to them the question of damages. A verdict was rendered for $350. upon which an order permanently enjoining the defendant from trespassing upon the Fred Dew tract was passed and judgment entered, and from this order and judgment the appeal is taken upon exceptions alleging error in the above ruling of the circuit judge.

The plaintiff and defendant claim title from a common source—Henry E. Berry— or, immediately and directly, the children of Elihu E. Berry, of whom Sarah M. Fore was one; these children being tenants in common and remaindermen after the death of their father of the lands in dispute under a conveyance from their grandfather, the said Henry E. Berry. The plaintiff claims through a deed from the master conveying certain of the standing timber upon the landto the Cape Fear Lumber Company, dated January 21, 1899, pursuant to a decretal order of the court of common pleas, in an action to which the tenants in common alone are parties, all the adults being plaintiffs and the minors defendants, praying the sanction of the court for the disposal of the minors' interest and sale of the aforesaid timber in accordance with the terms of options or contracts of sale previously entered into between the adults and the Cape Fear Lumber Company. The defendant claims through a sheriff's deed dated the 9th October, 1900, conveying the fee in the land, based upon a sale under execution upon Judgments against Sarah M. Fore, the liens of which date from April, 1894.

The facts necessary for an understanding of the issues are: Henry Berry In 1874 conveyed, amongst other lands, the Fred Dew tract to his son Elihu for life, and after his death to his children, of whom Sarah M. Fore was one. In September, 1895, after the death of Elihu, his son and administrator, E. Lide Berry, commenced an action in the court of common pleas for the settlement of the estate and the partition of this tract, together with the other land derived under the deed and held in common by the children of Elihu to this action. All the tenants in common and a creditor— Wheeler—were made parties. This action is conceded by all parties to be an action of partition, and resulted in a partition and decretal order confirming the same, dated May 12, 1900, by which the Fred Dew tract of land was allotted to Sarah M. Fore in severalty. While this suit was pending and before decree, E. Lide Berry, the administrator and one of the tenants in common, entered into contracts with the Cape Fear Lumber Company for the sale of certain of the standing timber upon the lands held in common at a stipulated price. The company agreed to purchase at the stipulated price, to comply as soon as the title is pronounced good by our attorneys, and the proper deeds executed. These contracts or options are dated February 12, 1898. In May, 1898, the adult tenants in common executed a paper bearing the caption of the suit for the sale of timber, presently referred to, reciting that all the plaintiffs are adults, and the defendants minors, and "The adult parties interested are anxious that the timber should be sold for the price agreed on between E. Lide Berry and said company, but the difficulty of the minority of the defendants makes it impossible to perfect the sale, except through the court of equity, as they are informed, and they therefore request Messrs. Johnson & Johnson, attorneys, to in-stitue proceedings to procure good and sufficient titles through the court to said company for said timber." And in pursuance thereof the suit through which plaintiff claims was brought. The plaintiff contends that this suit was...