Williams v. Beard
| Decision Date | 23 March 1870 |
| Citation | 1 S.C. 309 |
| Parties | JAMES W. WILLIAMS v. HENRY BEARD AND OTHERS. |
| Court | South Carolina Supreme Court |
One who purchases real estate, for valuable consideration without notice, from the mortgagor thereof, acquires a valid title under the Act of 1843, against a prior mortgagee, whose mortgage is unrecorded at the time of the purchase, and who fails to record it within sixty days, the time allowed by the Act for that purpose; and it makes no difference that the mortgage is recorded after the purchase and before the conveyance from the mortgagor to the purchaser is recorded or that the latter has not been recorded.
The Act of 1843 introduced a direct and important change in the law relative to the recording of mortgages, and is not to be construed as in pari materia with the previous Acts upon the subject of recording.
To a bill for foreclosure, a purchaser from the mortgagor, who is in possession under his conveyance, may avail himself of the defence of purchase for valuable consideration without notice, notwithstanding the proviso to the Act of 1791 which, in effect, vests the legal title in the mortgagee where the mortgagor is out of possession.
In equity a mortgage is treated as a mere security for the payment of the debt, and the equity of redemption as the real and beneficial estate, tantamount to the fee at law.
The purchaser from the mortgagor gave his own promissory note for part of the purchase money, and, after it became due satisfied it, by transferring to the mortgagor the note of a third person, guaranteed by the purchaser: Held , That the circumstance that the note thus transferred was still unpaid, and that the purchaser was liable therefor as guarantor, did not invalidate the defence of purchase for valuable consideration without notice, which the purchaser, in all other respects, had successfully made.
A party seeking the reversal, on appeal, of a decree in equity upon a question of fact, must satisfy the Appellate Court that the overbearing weight of the evidence is against the decree.
To a bill for foreclosure against the mortgagor and various persons to whom he had conveyed different parcels of the land, the alienees of one of those persons are necessary parties. So, also, the heirs of a decedent, to whom, in his lifetime, the mortgagor had bargained another parcel, and to whose widow he had conveyed it, were held to be necessary parties.
BEFORE CARROLL, CH., AT ABBEVILLE, JUNE, 1868.
This was a bill by James W. Williams, plaintiff, against Henry Beard, James M. Richardson, Patrick Heffernan, Joel Pinson, John W. Calhoun, Eliza A. Powers, Frances Sheppard and Elizabeth Day, defendants, to foreclose a mortgage of real estate given by the defendant, Beard, to the plaintiff.
In January, 1859, the plaintiff sold to Beard, at public auction, a tract of land, lying in Abbeville District containing two thousand and fifty acres, more or less, at the price of $25,000, and, to secure the payment of the purchase money, took his bond, with four sureties, conditioned for the payment of that sum, in four equal annual installments, with interest, and a mortgage of the tract of land. The bond and mortgage were dated January 26, 1859. On that day, Beard conveyed to the defendant, Pinson, at the price of _____, _______, one hundred and twenty-four and three-fourths acres of the mortgaged land. On the 17th March, 1859, he conveyed to the defendant, Richardson, at the price of $20,898.50, fourteen hundred and ninety-two and three-fourths acres of the same land. On the 8th April, 1859, he conveyed to the defendant, Calhoun, at the price of $860, forty-three acres of the same land. On the 19th August, 1862, he sold and conveyed to Patrick Heffernan fifty-seven acres of the mortgaged land, and on the 26th January, 1864, he sold and conveyed forty-seven and three-fourths acres of the mortgaged land to Frances Sheppard.
The evidence also tended to show that other small parcels of the land had been sold off by Beard, leaving him the owner of about one hundred and two acres; that the defendant, Elizabeth Day, had purchased a parcel of it from Calhoun; that Beard contracted with J. W. Powers, deceased, to sell to him part of the land; that Powers took possession, under his agreement, and paid part of the purchase money; and that, after his death, Beard conveyed the part he had agreed to sell to Powers to his widow, the defendant, Eliza A. Powers; and that Patrick Heffernan had conveyed the parcel he had purchased to two of his children.
The plaintiff's mortgage was recorded in the Register of Mesne Conveyance office, for Abbeville District, on the 27th June, 1866, and Beard's deed of conveyance to Richardson was recorded in the same office, on the 20th November, 1866. The other deeds of conveyance had not been recorded.
The defence set up by the purchasers, respectively, was, that they were subsequent purchasers for valuable consideration without notice, and that, as the plaintiff's mortgage had not been recorded within sixty days, they were entitled to the protection given to such purchasers by the provision of the first Section of the Act of 1843, (11 Stat. 256.)
The facts relative to the questions, whether the purchase moneys had been paid, and whether the purchasers had notice, are stated in the Circuit decree, and in the judgment of this Court.
The Circuit decree is as follows:
CARROLL, Ch.
Upon general principles of pleading, the bill may be defended against the objection of multifariousness. It seeks to enforce a lien derived from a single instrument against lands, which, at its date, constituted but one estate in severalty. It is a common charge upon their several parcels of the mortgaged premises, which the bill sets up against the defendants, and they have all a common interest opposed to it -Story's Eq. Pl., §§ 533, 284 and 285. But the frame of the bill is vindicated by authority directly applicable to the case in hand.-Story's Eq. Pl., § 197; Miller vs. Kershaw , Bail. Eq., 481.
Some of the questions discussed at the hearing are not regarded as necessary to be here considered. Neither the plaintiff's mortgage, nor the defendant's (Richardson's) conveyance from Beard, were recorded until after the lapse of more than seven years from their respective dates.
But the mortgage was recorded some months earlier than the deed to Richardson. The deeds from Beard to the other defendants have never been recorded. Each and all of the defendants (exclusive of Beard) contend that they are " subsequent purchasers for valuable consideration without notice," as contemplated by the Act of 1843, and are entitled to its protection. It is replied, on the part of the plaintiffs, that the Acts of 1698 and 1785 have been construed so as to stand together, and that a like interpretation, as far as practicable, should be placed upon the Act of 1843, so that a consistent system of registration may result; that the only repugnance between the Act of 1843 and the two preceding Acts relates to the time within which mortgages are to be recorded; that the provision, in the Act of 1698, that the mortgage or conveyance first recorded shall have priority, is not repealed by the Act of 1843, and that the effect, therefore, of the Act last mentioned is to render an unrecorded mortgage void only as against subsequent purchasers and mortgagees, whose deeds shall have been first recorded. Such does not seem to have been the construction placed upon the Act of 1843, in the recent case of McKnight vs. Gordon , 13 Rich. Eq., 222.
It is true that the subject of controversy in that case was personal property-a negro slave. But the provision, in the Act of 1698, giving precedence to the bill of sale, or mortgage of negroes first recorded, is, in substance, but a repetition of the provision which it makes as to conveyances and mortgages of land. So, also, in the case referred to, the judgment of the Court has reference only to the legal consequences, under the Act of 1843, which result from the failure to record, in due time, a mortgage of personal property. Yet such consequences are precisely the same as follow the omission to record, within the prescribed time, a mortgage of real estate, and are expressed by that Act in identically the same terms. In determining, therefore, who, under the Act of 1843, are to be deemed subsequent purchasers for valuable consideration without notice, as against a prior mortgage of slaves, the Court has, also, adjudged who shall be considered such purchasers, as against a prior mortgage of lands.
The plaintiff, McKnight, in the case cited, had never recorded his mortgage. Eighteen months after its date, one of the slaves mortgaged was sold under execution against the mortgagor, and was purchased by the defendant, Gordon, to whom the Sheriff, on the same day, executed a bill of sale. For his defence, Gordon claimed to be a purchaser for a valuable consideration without notice, under the Act of 1843. " The positive rule of law established by this statute," says the Court, " The answer of the defendant," continues the Court, " denies notice of the mortgage, or of any claim whatever by the plaintiff, to the property therein mentioned, and affirms that he paid the purchase money in good faith, without notice of the plaintiff's claim. No witness contradicts this denial of notice; " and the judgment of the Court is thus announced: ...
To continue reading
Request your trial