Tilgman Lumber Co v. Matheson

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtWATTS
Citation88 S.C. 432,70 S.E. 1033
Decision Date21 April 1911
PartiesTILGMAN LUMBER CO. v. MATHESON.

70 S.E. 1033
88 S.C. 432

TILGMAN LUMBER CO.
v.
MATHESON.

Supreme Court of South Carolina.

April 21, 1911.


1. Judgment (§ 743*)—Res Judicata.

Where a landowner executed an option for the purchase of the timber thereon, and thereafter sold the timber to plaintiff, who paid a mortgage thereon, and, in a suit by the holder of the option for specific performance, it was held that he was entitled to recover, but that plaintiff, who was a party to that suit, was entitled to be subrogated to the rights of the mortgagee, such judgment was res judicata as to plaintiff's rights against such mortgagee.

[Ed. Note.—For other cases, see Judgment, Dec. Dig. § 743.*]

2. Covenants (§ 84*)—Warranty — Persons Liable.

Where a mortgagee of land, on receiving payment from the purchase thereof, signed the deed with the vendor, though he was not named in the deed, he was not liable for breach of a covenant of warranty in the deed.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. §§ 90-92; Dec. Dig. § 84.*]

3. Subrogation (§ 14*) — Enforcement-Remedy.

Where in a former suit it was held that plaintiff was entitled to subrogation to the rights of a mortgagee, to the extent of the mortgage on the premises, which plaintiff had paid prior to failure of title, such right was not enforceable in an action for breach of warranty, subrogation being the substitution of one person in the place of another, so that where a purchaser's title to land fails he will be subrogated to the rights of holders of liens or incumbrances which he has paid, or which has been paid out of the purchase price.

[Ed. Note.—For other cases, see Subrogation, Cent. Dig. §§ 35-39; Dec. Dig. § 14.*]

Appeal from Common Pleas Circuit Court of Marlboro County; J. C. Klugh, Judge.

"To be officially reported."

Action by the Tilgman Lumber Company against A. J. Matheson. Judgment for plaintiff, and defendant appeals. Reversed.

Townsend & Rogers and Stevenson, Matheson & Stevenson, for appellant.

Willcox & Willcox and McColl, McColl & Le Grand, for respondent.

WATTS, A. A. J. A. J. Matheson, the appellant, a citizen of Marion county, S. C, was the owner of a tract of land situate in said

[70 S.E. 1034]

county, containing 1, 112 acres. He sold and conveyed this tract of land to J. P. Tart, and took a mortgage on the premises to secure the purchase money. Subsequently Tart sold this land to William Evans, subject to said purchase-money mortgage. Evans, on the 21st day of November, 1S98, for a valuable consideration, gave to the Cape Fear Lumber Company an option of purchasing within three months (90 days) all the timber growing on said tract of land. The option was reduced to writing, was duly recorded, and is fully set out in the case of the Cape Fear Company v. Evans, 69 S. C. 95, 48 S. E. 108. On the 17th day of February, 1899, within the 90 days, the Cape Fear Company accepted the option, tendered the money consideration, and demanded compliance on the part of Evans, which was refused. In the meantime, to wit, on the 23d day of January, 1899, Evans, for a valuable consideration, sold and conveyed to the Tilgman Lumber Company all of the timber on said land and embraced in the option which he had given to the Cape Fear Lumber Company, and which that company had accepted on the 17th of February, 1899. In the deed of conveyance executed by Evans to the Tilgman Lumber Company, the only grantor named in the deed is Evans himself. This sale was made subject to the purchase-money mortgage held by Matheson, and his name nowhere appears in the deed, although he signed the deed and received $700, the consideration money for the conveyance.

Such being the facts, the Cape Fear Lumber Company began an action to enforce its rights under its option. The Tilgman Lumber Company, Evans, and Matheson were all made parties defendant. The plaintiff demanded that the deed from Evans to the Tilgman Lumber Company be declared null and void, and that it be canceled, that Evans be required to execute a conveyance to the plaintiff in accordance with the terms of its option, and that Matheson release the lien of his mortgage.

The cause was heard on the circuit, and the complaint of the plaintiff was dismissed. From...

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1 practice notes
  • James v. Martin, (No. 12629.)
    • United States
    • United States State Supreme Court of South Carolina
    • April 4, 1929
    ...the case of Enterprise Bank v. Federal Land Bank, 139 S. C. 397, 138 S. E. 146, filed May 12, 1927, and Tilghman Lumber Co. v. Matheson, 88 S. C. 432. 70 S. E. 1033. "J shall now, as briefly as I can, report to the court my findings and conclusions, based upon an earnest study of the facts ......
1 cases
  • James v. Martin, (No. 12629.)
    • United States
    • United States State Supreme Court of South Carolina
    • April 4, 1929
    ...the case of Enterprise Bank v. Federal Land Bank, 139 S. C. 397, 138 S. E. 146, filed May 12, 1927, and Tilghman Lumber Co. v. Matheson, 88 S. C. 432. 70 S. E. 1033. "J shall now, as briefly as I can, report to the court my findings and conclusions, based upon an earnest study of the facts ......

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