Kaminsky v. Trantham

The opinion of the Court was delivered by Mr. Justice Gary. This is an action to foreclose a mortgage on real estate, executed by the defendant, W. D. Trantham, to John R. Falls, on the 25th of September, 1887, and by him assigned to the plaintiff. The facts are fully set out in the decree of the Circuit Judge, which should be incorporated in the report of the case, and we will, therefore, make here only a brief statement of them. The first lien upon the land was the judgment in favor of Pegues against the defendant, Trantham et al., which was entered on the 7th of June, 1879. The next lien, in the order of date, was the Falls mortgage, which, as just stated, was executed on the 25th of September, 1887. The next was a judgment in favor of Creighton & Son against Trantham, which was entered on the 20th of February, 1888. The next was a mortgage held by the defendants, Baum Bros., executed b}^ Trantham, on the 24th of April, 1888; and the next and last lien was a judgment in favor of Patterson, Renshaw & Co. against Trantham, entered 21st of February, 1891. Upon the judgment of Patterson, Renshaw & Co. an execution was duly issued and levied on the land in question, on the 12th of December, 1892; after [399] due advertisement the land was sold by the sheriff, on sale-day in January, 1893, and bid off by the appellant, Hay, who complied with the terms of sale, received title from the sheriff, and is now in the possession thereof. The proceeds of said sale were applied to the Creighton & Son judgment. The appellant, Hay, sets up, as a defense to this action, his claim of title acquired by him as purchaser at sheriff’s sale, on the ground that the sale should be referred to the Pegues judgment, which bore date anterior to the Falls mortgage. The lien of the Pegues judgment expired on the 25th of September, 1889, ten years from the entry thereof, and a summons to revive the same was served upon the defendant, Trantham, on the 25th of May, 1892, but it was not filed nntil the 10th of June, 1893, when an order was passed to revive said judgment. His Honor, Judge Aldrich, in his decree, finds that neither Hay, Patterson, Renshaw & Co., nor Creighton & Son had notice of the proceedings to revive the Pegues judgment, and that Hay was a bona fide purchaser without notice. Hay was a stranger to the proceedings under which the land was sold by the sheriff. 1 The main question in the case is, whether the title acquired by the appellant at sheriff’s sale can be referred to the Pegues judgment. The appellant’s title cannot be referred to the Pegues judgment, unless it was a lien on the land when the sheriff sold it. Section 310 of the Code (1882) provided that “final judgments entered in any court of record in this State subsequent to the 25th day of November, 1873, shall constitute a lien upon the real estate of the judgment debtor in the counties where the same are entered for a period of ten years fr'om the date of entry of such judgments. * * * Provided,, however, That the plaintiff in such judgments may, at any time in three years after the active energy has expired, revive the judgment, with like liens as in the original, for a like period, by service of a summons on the debtor, as required by law, requiring him to show cause, if any he can, at the next [400] term of the court for his county, why such judgment should not be revived; and if no good cause be shown to the contrary, then it shall be decreed that such judgment is revived according to the force, form, and effect of the former recovery,” &c. The case of King v. Belcher, 30 S. C., 381, decides that subdivision 2 of the amending act of 1885 was not retrospective so as to repeal the proviso of the section just quoted as to judgments entered after 1873 and before 1885. If Hay had purchased the land from Trantham, the judgment debtor, the case would be analogous to that of Woodward v. Woodward, 39 S. C., 259. In that case judgment had been entered against J. L. Woodward in favor of Marcus & Meyers on the 6th of October, 1880. On the 18th of August, 1891, J. L,. Woodward, the judgment debtor, conveyed the land to D. Hagood Woodward, who had no notice of any proceedings to revive the judgment. The judgment was revived on the 9th of October, 1891; execution was issued thereon, and the land sold by the sheriff on saleday in January, 1892, when it was bid off by Croft & Meyers, to whom the sheriff made title. The Court held, that the title of D. Hagood Woodward was superior to that of Croft & Meyers, which it would not have done if it had thought that the judgment against J. T. Woodward was a lien on the land when he sold to D. Hagood Woodward. It cannot be contended for a moment that D. Hagood Woodward did not have notice of the judgment of Marcus & Meyers v. J. L. Woodward when he purchased the land, because the law implies notice of the judgment of the court. In the case of Ellis v. Woods, 9 Rich. Eq., 19, the Court says: “It was of record there this was implied notice. The proceedings of all our courts are public. Their records, as those of every public office where records are kept, are open to the inspection of every citizen of the country who has an interest or an inclination to inquire or investigate. The keepers of such records are bound to produce and exhibit them on demand. When one purchases land from a defendant in execution, he cannot protect himself [401] in the purchase, or set aside the lien of the judgment, on the plea that he had no notice of the enrollment of the judgment; or, if he purchase a negro or other chattel, he cannot avoid the prior claim of the plaintiff in the execution on the ground that he was not aware that such execution was lodged in the office of the sheriff. In these instances, the purchaser has implied notice. I think that public policy requires that the doctrine should be broadly declared that the records in all our courts should be implied notice in all cases, except where legislative acts have or shall modify or restrict the doctrine.” When Hay purchased the land, he had implied notice of the Pegues judgment, and the law presumes he knew its legal effect, which was that it had lost its active energy and was no longer a lien on the land. Furthermore, when he purchased the land, he had no notice that proceedings had been, or would be, instituted to revive said judgment. He could not, then, in contemplation of law, have understood that the sale of the land by the sheriff was referable to the Pegues judgment. In this case it would be as inequitable to the rights of others to refer the sale to the Pegues judgment as it would have been in Woodward v. Woodward to have held that the judgment against J. U. Woodward was a subsisting lien on the land when purchased by D. Hagood Woodward. In each of these cases the sale took place after the expiration of ten years from the entry of the judgment, but within the three years allowed for reviving the same; and in neither of the cases did the purchaser have notice of any proceedings to revive the judgment. Under these circumstances, the other parties interested had the right to presume that Hay was not buying the land under the Pegues judgment, but without reference to that judgment. Public policy and the spirit of the law aim at certainty, and that, as far as possible, the rights of parties at the time of a sale under judicial process should be fixed, and not dependent upon the steps which a judgment creditor might see fit to take after such sale. Hay’s title to the land should not be [402] dependent upon the revival of the Pegues judgment after the sale of the land by the sheriff. Such uncertainty would necessarily work injustice to some of the parties in interest. The views which we have just announced are in harmony with the policy outlined by our law-makers, as shown by subdivision 2 of the amending act of 1885, incorporated in section 309 of the Code, which provides that “a final judgment may be revived at any time within the period of ten years from the original entry thereof by the service of a summons upon the judgment debtor * * * to show cause, if any he or they may have, why such judgment should not be revived; and if no good cause be shown, it shall be decreed that such judgment is revived.. And such judgment shall thereupon constitute a lien upon the real estate of the judgment debtor then owned, or thereafter to be acquired, by him, in the county where the judgment is entered, for a period of ten years from the entry of such decree; but such lien shall not revert back to the date of the original entry of such judgment,” &c. 2 The second exception complains of error on the part of the Circuit Judge in not directing that the mortgaged premises be divided and sold in convenient parcels. In providing for a sale of the land, the Circuit Judge ordered that the mortgaged premises be sold, or so much thereof as may be necessary and sufficient to pay the sum of $1,213.70, the amount due under the mortgage by Trantham to plaintiff, &c. This necessarily implied that the officer making the sale has the right to have the laud divided into convenient parcels, and it is his duty to have regard, in making such division., to the rights of all parties in interest. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.