VanDiviere v. Mitchell , 45 S.C. 127 ( 1895 )

The opinion of the Court was delivered by

Mr. Justice Gary.

This action was heard by his Honor, Judge Watts, upon an agreed statement of facts, which, together with the appellant’s exceptions, will be incorporated in the report of the case.

The following appears in the decree of his Honor, Judge Watts, in addition to the formal provisions for foreclosure of the mortgage mentioned in the complaint, to wit: “It is ordered, adjudged, and decreed, that the execution and delivery of the deed for said premises by Burt Mitchell to Z. H. Carwile, the execution and delivery of the notes and mortgage, to secure the purchase money of the defendant, Z. H. Carwile, to the defendant, Burt Mitchell, the due record of said mortgage, as required by statute in this State, and the contemporaneous delivery of the possession of said premises by the grantor, Burt Mitchell, to his grantee, Z. H. Carwile, and the continuance of his possession of the same for some time thereafter — which I find as facts from the agreed statement of counsel reported herein by the master — subsequent purchasers and creditors were affected with notice of plaintiff’s mortgage and of possession thereunder, and the defenses of the defendants, W. P. Anderson and Elizabeth Albritton, of subsequent purchases and creditors for value without notice, are overruled.”

Section 1968 of the Revised Statutes provides that * * * “all mortgages or instruments in writing in the nature of a mortgage of any property, real or personal, * * * and, generally, all instruments in writing now required by law to be recorded, * * * shall be valid, so as to affect, from the time of such delivery or execution, the rights of subsequent creditors or purchasers for valuable consideration without notice, only when recorded within forty days from the time of such delivery or execution in the office of register of mesne conveyance of the county where the property affected thereby is situated, in the case of real estate: * * * Provided, nevertheless, That the above mentioned deeds or instruments in writing, if recorded subsequent to the expiration of said period of forty days, shall be valid to affect the rights of subsequent creditors and purchasers for valuable consideration without notice, only from the date of such record.”

In order that the mortgage may be valid so as to affect the rights of subsequent creditors and purchasers for valuable consideration without notice, it is only necessary that it be recorded in the manner provided by law; but it is not necessary that the deed of conveyance of the person executing and delivering the mortgage should also be recorded. There is no such requirement in the statute. The mortgagee complied with all the requirements of the statute when the mortgage was duly recorded.

This case is ruled by the recent case of Younts v. Starnes et al., 42 S. C., 22. In that case it appears that a deed of conveyance of land was executed and delivered in 1882, and a mortgage executed and delivered by the grantee to secure payment of the purchase money. The mortgage was duly recorded, but the deed of conveyance was not placed upon the record. In 1886, the grantee, who had failed to record his deed because he believed it was defective, asked for and received a new deed as a substitute for the one delivered in 1882. In the spring of 1888, a merchant sold goods on a credit to the grantee, who, in the winter of 1888, in order to secure payment of said account, executed and delivered to the merchant a mortgage of the said land. After the sale of the goods, but before the delivery of the mortgage to the merchant' in 1888, the merchant received actual notice of the former mortgage delivered and recorded in 1882, and this was one of the grounds, but not the only ground, upon which the Court held that the mortgage executed in 1882 was valid against the mortgage executed in 1888. After speaking of the effect of the actual notice, the Court then proceeds to speak of the constructive notice arising from the recording of the mortgage in 1882: “Besides, all this time the mortgage of the plaintiffs was regularly on the record, and we cannot doubt that Wittkowsky must be held bound by this constructive notice that the mortgage of the plaintiffs still existed. ‘Mortgagees of land are not bound to give to purchasers from the mortgagor any further notice of their claim than that which the record of mortgage gives.’ Annely v. DeSaussure, 12 S. C., 488. Under these circumstances, we cannot say the Circuit Judge erred in holding that it was error in deciding that the defendant, Wittkowsky, was a creditor for value, and without notice of the existence of plaintiff’s mortgage. The mortgage, as has been stated, wras properly recorded in the proper office long before the debt of Wittkowsky was contracted, and this fact alone would charge him with notice. Besides, he had sufficient notice of facts that would put him on inquiry, &c.”

The recording of the mortgage being constructive notice to subsequent creditors and purchasers, the exceptions of the appellant are overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.