Moore v. Trimmier
| Decision Date | 17 April 1890 |
| Citation | 11 S.E. 548,32 S.C. 511 |
| Parties | MOORE v. TRIMMIER et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county HUDSON, Judge.
The sheriff of Spartanburg county having levied on a tract of land in the possession of plaintiff, known as the "Tom Wofford Place," under an execution issued to enforce a judgment recovered by F. M. Trimmier against one John Winsmith on the 13th of March, 1879, which land was then owned by said Winsmith, this action was commenced to enjoin the sale until certain other property, formerly belonging to Winsmith, should be exhausted; the same, as plaintiff contends, being first liable to satisfy said judgment. All parties interested having been brought in as defendants to this action, the question presented is as to the order in which the property held by the several parties is liable to be subjected to the payment of said judgment. There are however, two preliminary questions raised by the appellants which must first be disposed of, before the main question in the case can rise. These questions are (1) whether the Trimmier judgment is a valid judgment; (2) if so, whether it has not been satisfied.
The validity of the judgment is assailed upon the ground that it was a judgment by confession before the clerk, and that Trimmier, being himself the clerk at the time, was not competent to take or enter such a judgment in his own favor. This question has already been decided in the case of Trimmier v. Winsmith, 23 S.C. 449, which was a proceeding to renew the execution previously issued to enforce said judgment, in which the same question was there raised by Winsmith as one of the grounds upon which he based his resistance to the renewal. But the court held that, while it was not a commendable practice for a clerk to take and enter up a confession of judgment in his own favor, yet that a judgment so taken and entered would be good and valid against the judgment debtor. Now, while it is true that the appellants, not having been parties to that proceeding, would not be bound thereby as a matter res adjudicata, and while the decision only went to the extent of holding the judgment valid as between the parties to it, yet it seems to us that the principles upon which that decision rested require that we should, in the absence of any allegation or proof of fraud in the taking of the judgment, hold the judgment valid in this case. The effect of that decision was to make that judgment a lien upon all the real estate of Winsmith in the county of Spartanburg at the date of its entry; and all parties dealing with that property, either by taking liens upon it or purchasing it, did so subject to the lien of that judgment.
But, assuming the judgment to be valid, it is next contended that it has been satisfied by operation of law. The facts upon which this contention is based are these: Winsmith owned a valuable tract of land in Union county, upon which the following liens had been obtained: (1) A judgment in favor of Briggs; (2) a mortgage in favor of the plaintiff herein and said Trimmier; (3) the aforesaid judgment in favor of Trimmier, a transcript thereof having been filed in the proper office in Union county, besides other junior judgments, which need not be further noticed, as the holders thereof make no claim. On the 1st of December, 1879, the Union county land, having been levied on under the Briggs judgment, was sold, it being understood, and so announced at the sale, that the proceeds of the sale should be applied to the aforesaid liens, including the mortgage, according to their priority as fixed by their dates; and the same were so applied by the sheriff of Union county under an order passed by his honor, Judge WALLACE, upon the petition of Trimmier and Moore, the mortgagees. The result was that the proceeds of the sale, after satisfying the Briggs judgment and the mortgage, were insufficient to satisfy in full the Trimmier judgment, though, if the proceeds of sale had not been applied to the mortgage, they would have been amply sufficient to satisfy the Trimmier judgment in full. The appellants now contend that, as matter of law, no part of the proceeds of the sale of the Union county land could have been properly applied to the mortgage thereon, but that the same were properly applicable to the judgments in their order, and such application, if now required, as it should be, would satisfy the Trimmier judgment. This matter, also, has been adjudged in the case of Trimmier v. Winsmith, supra; and although, by reason of the fact that these appellants were not parties to that case, the question cannot be regarded as res adjudicata as to them, yet it did determine that, as between Winsmith and Trimmier, the judgment was not fully satisfied, either in fact or in law, by the proceeds of the sale made 1st December, 1879, because, while Winsmith might possibly have then required such an application of the proceeds of sale as would have satisfied the Trimmier judgment, yet, having consented that so much of said proceeds as were necessary for the purpose should be applied to the satisfaction of the mortgage, there was a balance then left unpaid on the Trimmier judgment. Now, as the rights of appellants arose subsequent to the sale of the 1st of December, 1879, as will be presently seen, they have no right to complain of any arrangement that Winsmith then saw fit to make with his then creditors; for, conceding that Winsmith might then have required that the proceeds of the sale made by the sheriff of Union should be applied to the judgments in their order, yet he certainly had the right to consent to a different application where the rights of third persons had not arisen. What would have been the result if the rights of these appellants had arisen before the sale of 1st December, 1879, we need not consider, under the facts of this case; and we intimate no opinion as to that. We agree, therefore, with the circuit judge, that the Trimmier judgment must be regarded as a valid judgment, and that it was neither in fact nor in law satisfied by the sale of the Union county lands.
The next inquiry is as to the order in which the property now held by the several parties, which was originally subject to the lien of the Trimmier judgment, shall be resorted to for the purpose of satisfying the balance now due on that judgment. The facts upon which this question is to determined are as follows: On the 28th of February, 1880, Winsmith mortgaged two tracts of land--one known as the "Tom Wofford Place," and the other as the "Nimrod Moore Place"--to the plaintiff and one A. G. Floyd to secure the payment of a debt of $1,075. On the 7th of May, 1881 Winsmith sold and conveyed the Nimrod Moore place to C. E. Smith for the consideration of $2,000, and on the same day mortgaged to said Smith a parcel of land in the city of Spartanburg containing 20 acres. On the 3d of February, 1882, Winsmith mortgaged a tract of land containing seven acres to F. M. Trimmier. On the 18th of August, 1883, Winsmith sold and conveyed to L. A. Mills the White Oak tract, containing 308 acres; and on the 24th of October, 1883, Winsmith sold and conveyed a tract containing 184 acres to R. C. Hunter. Under proceedings to foreclose the mortgage of Winsmith to the plaintiff and Floyd, the land covered thereby was sold on the 1st of October, 1884, when the Tom Wofford place was bought by the plaintiff herein for the sum of $1,310, and the Nimrod Moore place by C. E. Smith, above named, for $390. On the 5th of January, 1885, or perhaps some time in 1884, the 7-acre tract was sold under proceedings to foreclose the mortgage to Trimmier, and bought by the defendant M. J. Thomson; and on the 4th of May, 1885, under proceedings instituted by C. E. Smith, to which Trimmier, as a holder of prior lien, was made a party,...
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