Bailey Sons v. Wood , 71 S.C. 36 ( 1905 )

March 7, 1905. The opinion of the Court was delivered by This Court does not deem it necessary to add anything to what is said in the decree of the Circuit Judge.

The exceptions are, therefore, overruled and the decree affirmed, for the reasons therein stated.

MR. JUSTICE WOODS. I concur in the conclusion that F.L. Bramlett and Lula M. Wood, as heirs at law of J.H. Bramlett, are not entitled to be subrogated to the rights of Mrs. Ansel as against the incumbrances senior to his deed, by reason of his payment of the purchase money of the South tract on Mrs. Ansel's mortgage; because he was grossly careless in making no examination of the records for other incumbrances (see extended note to American BondingCo. v. Bank, 99 Am. St. Rep., 482); and for the further reason that it was not proved J.H. Bramlett supposed he was getting a good title when he paid the purchase money.Griffin v. Griffin, 70 S.C. 220.

I do not wish at this time to assent to the view of the Circuit Judge, that a release on the mortgage and the lack of an agreement to keep it open for the benefit of the purchaser would be fatal to the claim of subrogation, because the authority of the case of Bleckeley v. Branyan, 26 S.C. 424,2 S.E., 319, has been much shaken by the subsequent cases of Michalson v. Myrick, 47 S.C. 297, 25 S.E., 162;Lipscomb v. Goode, 57 S.C. 182, 35 S.E., 495, and Powell v. Patrick, 64 S.C. 190, 41 S.E., 894. The point decided in Bleckeley v. Branyan, supra, is not necessarily involved here, and as to that I express no opinion.

I think the Circuit Judge was in error in requiring the Globe Phosphate Co. to go out of court and enforce its debt by levy and sale under execution. All parties had been brought into Court to have their equities adjusted as to both tracts of land, and all who were creditors, including the judgment creditor, asked for the sale of the lands by the Court for satisfaction of their debts. The Court undertook to adjudge the rights of the parties and all sales of lands contemplated by the decree should have been made by the officer of the Court and under its direction.

On all other points I concur generally.