State v. Johnson

• Decision Date: 22 February 1884
• Citation: 20 S.C. 387
• Parties: STATE v. JOHNSON.
• Court: South Carolina Supreme Court

20 S.C. 387

STATE

v.JOHNSON.

Supreme Court of South Carolina.

Feb. 22d, 1884.

1. Under the statute making it a misdemeanor willfully and knowingly to sell property covered by a lien without giving notice of the lien, a sale without giving notice of a lien of which the vendor was ignorant, is no offense.

2. Where a vendor, ignorant of a judgment having a lien upon the land, and himself the maker of two mortgages, told the purchaser that “he would arrange to meet or pay such matters as he had put upon the land,” he is not guilty under this statute, as he did not intentionally suppress notice of the judgment, and did give notice sufficient to lead to knowledge of the two mortgages.

3. But the vendor's ignorance of the judgment-lien being disputed, a request to charge, which ignored the lien of the judgment, was properly refused.

4. The offense of selling is but one offense under this act, however many liens may have existed at the time, and the judge therefore properly refused both to require the solicitor to indicate which one of the three liens he relied upon, and also a motion in arrest of judgment based upon this objection.

5. The lien of a judgment is as much within the meaning of this statute, as a mortgage or other lien.

Before WALLACE, J., Aiken, September, 1883.

This was a prosecution against J. E. Johnson for selling to G. W. Buzbee, on February 10th, 1882, a tract of land covered by liens without giving notice of such liens. On February 20th, 1883, the same land was sold by the sheriff to John Jordan under a judgment and execution of 1877 in favor of Jordan against J. E. Johnson. There were also two mortgages resting upon the land at the time of sale. The balance due upon these mortgages was paid after defendant's arrest in this case, in January, 1883.

There was conflict of testimony as to G. W. Buzbee's knowledge of this judgment. The defendant testified that he “did not know that the Jordan judgment was a lien” upon the land, as he “bought the land some time after that judgment was obtained.” Buzbee testified that defendant told him “there was not the scratch of a pen” against the land. Defendant denied this, and said: “I told him that there was nothing against the land, except what I had put over it, and that I was responsible for such things and would pay them.” Other matters are stated in the opinion.

Mr. G. W. Croft, for appellant.

Mr. Solicitor Gantt, contra.

The opinion of the court was delivered by

MR. JUSTICE MCIVER.

The defendant was indicted under the act of 1873, (15 Stat. 332, incorporated in the general statutes of 1882 as section 2514,) for selling certain real estate, covered by certain liens, without giving notice thereof to the purchaser. The indictment specified three liens, to which the property sold was subject, viz.: A judgment in favor of John Jordan, a mortgage in favor of C. K. Henderson, and a mortgage in favor of P. W. Ferrell. At the close of the testimony, defendant's counsel moved the court to require the solicitor “to elect which lien upon the property sold, of which the defendant did not give notice, upon which the State would ask a conviction.” This motion was refused, and exception was duly taken.

The counsel for the defendant then requested the Circuit judge to charge as follows: “1. That if the jury believe that at the time, or before the defendant made his deed to G. W. Buzbee, he was not aware that the judgment of John Jordan against him constituted a lien upon the land conveyed, and at such time he also notified Buzbee that he would arrange to meet or pay such matters as he (the defendant) had put upon the land, and that he has done so, then he must be acquitted. 2. That if the jury believe that the defendant, at the time or before he made the deed to G. W. Buzbee, told him that there was nothing against the land except such matters as he had put on it, and he would arrange to pay such matters, such notice was sufficient notice of any lien that the defendant himself put upon the land; and that, in such case, Buzbee cannot now complain of any mortgage that the defendant had placed on the land which had been paid; and that the defendant should be acquitted.”

The Circuit judge declined to charge as requested, and the jury having rendered a verdict of guilty, the defendant moved, in arrest of judgment, upon the following ground: “That the indictment is defective, in that it contains the charges in one count of selling with more than one lien upon the same, whereas it is respectfully submitted, that for every lien upon the land, the selling of which without giving notice thereof was a separate offense, and should have been laid in separate counts.” This motion was overruled, and sentence was passed upon the defendant.

The defendant appeals, substantially, upon the following grounds: 1. Because the Circuit judge refused to require the solicitor to elect which of the liens mentioned in the indictment he intended to rely upon. 2. Because of error in refusing the requests to charge as above set out. 3. Because a judgment is not such a lien as is contemplated by the statute under which the defendant was indicted. 4. Because of error in overruling the motion in arrest of judgment.

It appeared in evidence that the Jordan judgment had been recovered against the defendant before he bought the land which he sold to Buzbee, and that the two mortgages mentioned in the indictment had been put upon the land by the defendant some time before the sale, and had both been satisfied before the trial of this case, though the final payments seem to have been made after this prosecution was commenced. The land was sold by the sheriff...