National Bank of Newberry, S.C. v. Livingston

• Citation: 161 S.E. 769,164 S.C. 2
• Decision Date: 21 December 1931
• Docket Number: 13296.
• Parties: NATIONAL BANK OF NEWBERRY, S. C., v. LIVINGSTON et al.
• Court: United States State Supreme Court of South Carolina

161 S.E. 769

164 S.C. 2

NATIONAL BANK OF NEWBERRY, S. C., v. LIVINGSTON et al.

No. 13296.

Supreme Court of South Carolina

December 21, 1931

Appeal from Common Pleas Circuit Court of Newberry County; C. C Featherstone, Judge.

Action by the National Bank of Newberry, S. C., against Mills M Livingston, the First Carolinas Joint Stock Land Bank of Columbia, S. C., and others. From the decree, plaintiff and the last-named defendant appeal.

Modified and remanded.

The decree of Judge Featherstone directed to be reported follows:

The plaintiff, and the defendant Joint Stock Land Bank, make motions in this case, first for the appointment of a receiver and, second, for an order to conform the judgment of the circuit court to that of Supreme Court.

The defendant J. P. Icard makes a motion for an extension of time in which to cut the timber on the three tracts of land although the time has expired by the terms of his deed, on the ground that he has been deprived of the right to do so by the acts of the adverse parties and by the delay of the court.

Fortunately it will not be necessary to state the facts at any length, for they are nearly all contained in the record of this case on the circuit or in the Supreme Court.

On the 6th of March, 1925, the defendant M. M. Livingston, by deed, granted certain timber rights to Icard, giving him five years in which to cut and remove the timber on three tracts of land, one of which was the Cooley tract.

The deed was not recorded until September 18, 1926, practically eighteen months after its execution.

After the execution of the deed, but before its recording, M. M. Livingston executed mortgages to the plaintiff and defendant Joint Stock Land Bank.

Before the execution of the mortgages, but after the execution of the timber deed, M. M. Livingston executed to Mrs. Lenora C. Wheeler a mortgage on the Cooley tract, which was duly recorded, and in which, as a part of the description, was the statement, "Being the same land on which I recently sold to J. P. Icard the standing timber, and this mortgage is junior to said timber deed."

The plaintiff brought this action to foreclose its mortgages on the three tracts, including the Cooley place, Icard and Land Bank being made parties.

Icard set up his rights to the timber on all three tracts, alleging that the mortgagees had notice thereof by reason of the recital in the Wheeler mortgage.

The action was commenced the 18th day of January, 1928.

The circuit court held that Land Bank had actual notice and that Icard was entitled to priority over it as to the timber on all the lands, but that plaintiff had no actual notice, and the recital did not charge it with constructive notice.

The circuit decree was signed January 18, 1929, just exactly one year from the time of the commencement of the action.

The circuit decree provided for a sale of the three tracts of land and the timber thereon, separately, on sales-day in March, 1929, and, further, that the proceeds of the sale of timber should first be applied to plaintiff's mortgage debt, and balance, if any, to Icard.

The circuit decree further provided that the purchaser of the timber have until March 6, 1930, in which to cut and remove it, that being the date of the expiration of the five-year period, as fixed by the timber deed.

The case went to Supreme Court, both Icard and Land Bank appealing.

Exactly when it got to Supreme Court does not appear, but it was decided by that court March 13, 1930, seven days after the time for removing the timber expired. 155 S.C. 264, 152 S.E. 410, 415.

The Supreme Court sustained Icard's appeal, holding that plaintiff had constructive notice from the recital in the Wheeler mortgage, and affirmed the circuit decree in all other respects.

In some way, Mr. Justice Cothran, who is usually very accurate and clear in his statements, says in the opinion, "He [referring to Icard] therefore claims that his deed has priority over the mortgages, so far as the timber on the Cooley [italics added] place is concerned."

And again, in speaking of what the circuit judge held, he says: "Holding that Icard was entitled to priority over the land bank mortgage, as to the timber on the Cooley place."

The judgment of the Supreme Court was "that the decree of the circuit court be modified as herein indicated, and that the case be remanded to that court for such further orders as may be consistent with the conclusions announced."

And now for a discussion of the questions involved in the motions.

The motion for the appointment of a receiver was not contested, and I have signed a separate order as to that.

As to the motion of the mortgagees to make the judgment of this court conform to that of the Supreme Court: The mortgagees are contending that the circuit court decree was modified only in so far as the timber rights of the Cooley place are concerned. Icard is contending to the contrary. This question I think, will have to be answered in accordance with the contention of Icard.

The erroneous statements as to what Icard was contending for, and as to what the circuit judge held, relates to immaterial matters and should not control what was evidently intended by the whole opinion.

The learned Justice was fully cognizant of the well-established rule in equity, that notice sufficient to put one upon inquiry gives notice of all that would be revealed by a diligent following up of that inquiry; in fact, he actually quotes the authority to that effect.

Clearly a following up of the trial, starting with the recital, would have revealed the deed which granted the timber rights, not simply on the Cooley, but on all three tracts of land.

Besides, the record shows that Icard was claiming the timber on all the tracts, that the circuit decree had deprived him thereof, and his appeal involved the timber on all three tracts. And the deed was printed in full in the record before the Supreme Court, and the dissenting opinion calls attention to the error of Mr. Justice Cothran in his statement of facts in respect to Icard's claiming timber on the Cooley place only.

To hold with the contention of the mortgagees would be drawing it too fine, in fact, would be splitting hairs.

An order will have to be passed conforming the judgment of the circuit court to that of Supreme Court, but in accordance with the views above expressed.

The decision of the Supreme Court gave Icard priority over the plaintiff as to timber on all the lands, and the leading opinion so held, when at the end it says, "We think therefore that the decree of his honor, the circuit judge, is erroneous in holding that the Newberry bank is not chargeable with knowledge of the Icard Timber deed." (Italics supplied.) And it is so ordered, adjudged and decreed.

The next question, whether or not Icard shall have a reasonable length of time to gather the fruits of his victory, after the time fixed in the deed has expired, is not altogether easy of solution.

To solve it, we must bear in mind:

I. That Icard had full five years in which to cut and remove the timber. He had no more, no less.

II. The time has expired. It expired while the case was pending in the Supreme Court.

III. As shown by the record, he made two motions while the case was pending in that court: First, to advance the time of argument; second, again to advance the argument, and, failing in that, to be allowed to cut and remove the timber upon the giving of bond.

The first motion was refused. The second time he got the time of argument advanced, but was refused relief as to cutting of the timber.

IV. That at the time the action was commenced to foreclose, in which his rights were contested, to wit, January 18, 1928, he had more than two years in which to cut the timber.

V. That at the time of the filing of the circuit decree, January 18, 1929, he had about fourteen months left.

VI. That at the time Supreme Court decided the case he had no time left, but was behind seven days.

VII. That his right commenced March 6, 1925. He could have cut and hauled before the action was commenced, but was not bound to do so. He had the full five years, and Supreme Court has held that plaintiff had notice of his contract, and the circuit court held that Land Bank knew of his rights, and Supreme Court affirmed that holding.

What ought a court of equity to do in these circumstances?

As shown by my first decree, I was against Icard; I did not think that he was entitled to much consideration. He failed to record his deed, as he ought to have done, and I held that plaintiff was without notice, and Icard must bear the consequences of his own wrong.

But the Supreme Court did not agree with me. It held that Icard could sit back, not open his mouth, and reap the advantage from what M. M. Livingston said in his mortgage to Mrs. Wheeler.

What the Supreme Court decided is the law of this case. By it I am bound, and I yield most gracefully.

With the Supreme Court having held that both the mortgagees had notice of Icard's rights; with the fact staring us in the face that Icard had full five years in which to cut and remove the timber; with the further fact before us that Icard's hands were tied for more than two years by litigation, I repeat, what ought a court of equity do?

It seems to me there can be but one answer. He ought to be allowed a reasonable time in which to cut and remove the timber.

Courts of equity have answered this question time and again.

The able and zealous attorney for Icard has supplied the court with scores of cases, sustaining this view. Halla v Rogers (C. C. A.) 176 F. 709, 34 L. R. A. (N. S.) 120; 38 C.J. page 174, paragraph 55; 17 R. C. L. page 1090, paragraph 17; Colvin v. Clark, 101 Wash. 100, 172 P....