Kirk v. Duren , 45 S.C. 597 ( 1896 )

The opinion of the Court was delivered by

Mr. Justice Gary.

In order to understand fully the facts of this case, it will be necessary to set out in the report of the case the complaint of the plaintiff. As the complaint shows that the plaintiff was not the owner and holder of the alleged státutory lien at the time of the commencement of this action, the Court will not take it into consideration in disposing of the case. The plaintiff seeks relief on the equity side of the Court, to set aside the judgment mentioned in the complaint, in so far as it purports to be a lien on the land described in the complaint, as a cloud upon the title of the plaintiff to said land.

His Honor, Judge Earle, after affirming the report of the referee, Hon. Ira B. Jones, in his decree, says: “There is another view to be taken of this case, which was not urged at the argument, and which seems fatal to the application for injunction: First, the Duren judgment could not be attacked collaterally, if valid on its face; and, second, if void upon its face, so as to be disregarded in any proceeding where it might come in question, then no one would be injured by a sale under it.” His Honor then decreed that the temporary injunction be dissolved and the complaint dismissed. The conclusion of his Honor, Judge Earle, is fully supported by the following authorities: Haigler v. Way, 2 Rich., 324; Crocker v. Allen, 34 S. C., 452; Latimer v. Ballew, 41 S. C., 517; Gillam v. Arnold, 32 S. C., 503, and 35 S. C., 612.

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