Ex Parte City of Anderson v. Brown Bros , 82 S.C. 131 ( 1909 )

OPINION. The opinion in this case was filed October 3, 1908, but held up on petition for a rehearing until

January 18, 1909. The opinion of the Court was delivered by There are no issues of fact, and under the agreement of counsel (as stated in the decree of his Honor, the Circuit Judge), the only question is, whether F.W. Wagener Co. were creditors for value without notice under the recording acts.

In his decree the Circuit Judge gives his reasons why F. W. Wagener Co. did not have notice as follows: "It is contended by plaintiffs that in June, 1887, when Beulah took the deed, she went into actual possession, and that possession carried notice to the Wageners. I do not think the possession by Beulah was of such a character and long enough continued to carry notice to the Wageners. Furthermore, Georgianna had a life estate in the land, which was only ended in 1902, and up to that time she was the one lawfully in possession."

In determining the question whether Wagener Co. had notice, we desire to call special attention to the following facts: On the 28th day of February, 1883, G. Ernest Brown, in consideration of $1,050.00, made an assignment of his interest to J. Feaster Brown, which was recorded on the 28th of April, 1896. In September, 1895, J. Feaster Brown's one-half interest was sold by the sheriff, under a judgment against him, and purchased by his wife, Beulah C. Brown, whose deed was recorded in 1896, at which time she executed a mortgage on the land, which was duly recorded, in which she claimed to be the owner of the premises. On 3d of June, 1887, G. Ernest Brown executed a deed of conveyance of his own one-half interest in the land to Beulah C. Brown, but which was not recorded until the 27th of June, 1902; it seems to be conceded, or, at least, the ruling of the Circuit Judge was made on the hypothesis that Beulah C. Brown, immediately after the execution of said deed of conveyance, entered into possession of the land.

This fact, taken in connection with the record of the assignment, showed that J. Feaster Brown occupied the position of a mortgagee in possession; and, taken in connection with the record of the mortgage, showed that Beulah C. Brown was exercising acts of ownership and was in possession, claiming the land as her own.

Two or more persons may be in possession at the same time; therefore, the fact that Georgianna Brown was also in possession did not dispense with the necessity on the part of Wagener Co. to make inquiry as to the rights of J. Feaster Brown and Beulah C. Brown.

Wagener Co. were not in a position to claim that they were subsequent creditors for value without notice until the judgment was rendered in their favor, in 1897, as the statute extending the provisions of the recording acts to simple contract creditors was not enacted until 1898. Eula M. Brown traced her title from Beulah C. Brown.

Under these circumstances, the only reasonable inference from the admitted facts is that there was enough to put Wagener Co. upon inquiry, which if pursued with due diligence would have led to knowledge of the title under which the appellant claimed.

Therefore, the Circuit Judge erred in ruling that the possession by Beulah was not long enough continued to carry notice to the Wageners, and that Georgianna Brown, the life tenant, up to the time of her death, was the only one lawfully in possession. Daniel v. Hester, 29 S.C. 147,7 S.E., 65; Ellis v. Young, 31 S.C. 322, 9 S.E., 955.

The question of notice under the recording acts presents a legal issue. Gregory v. Ducker, 31 S.C. 141,9 S.E., 780; Hodges v. Kohn, 67 S.C. 69, 45 S.E., 102.

Therefore, as there was error, the judgment should be reversed, and the case remanded to the Circuit Court for a new trial upon this issue.

MR. CHIEF JUSTICE POPE concurs.