Kennedy v. Boykin

¶1The opinion of the court was delivered by

¶2The object of this action is to obtain partition of certain real estate in the County of Kershaw, which formerly belonged to Burwell Boykin, and was by his will given to his three sons, Thomas L. Boy.kin. John Boykin, and Eugene Boykin, upon the death of their mother, charged with the payment of certain legacies to their sisters. The mother having died and the two sons, John and Eugene, having died intestate, and the legacies to the daughters having been pi’ovided for, the time for partition of the land has arrived, and the purpose now is to obtain partition amongst Thomas L. Boykin; in his own right and as heir'at law of his mother and of his two deceased brothers, and the other heirs at law of these parties. There is no, contest between the co tenants as to their shares or as to *81their right to partition, and it seems to be conceded that the share of Thomas L. Boykin in the land remaining for partition is 41-90 thereof.

¶3The only controversy is between certain mortgage creditors of Thomas L. Boykin. Of these there are three practically, though there seems to have been another mortgage to Charlotte Taylor, assigned to A. H. IT. Stuart, which, however, is not represented in this case, and not having been considered by the court below, is not before us. Of the three mortgages which are to be considered, the oldest is a mortgage to Louis D. DeSaussure, which, though assigned to ’the defendants, Pelzer, Rodgers & Co. and A. B. Rose, as trustee, will, for the sake of convenience, be designated as the DeSaussure mortgage. The next in date is a mortgage to the defendants, Witte Bros. The last in date is a mortgage to the defendant, J. A. Armstrong. The DeSaussure mortgage purports to'be a mortgage on 823 acres of land, described by metes and bounds. The Witte mortgage purports to be a mortgage on 2,000 acres of land, more or less, likewise described by metes and bounds, which, it seems to be conceded, does not embrace any of the 823 acres covered by the DeSaussure mortgage; but in the record of this mortgage, doubtless through an error of the 'recording officer, the quantity of land covered by the mortgage is stated as 200, instead of 2,000 acres, more or less. And the Armstrong mortgage purports to be a mortgage on the undivided interest of Thomas L. Boykin in the lands of Burwell Boykin, deceased. Such other facts as may be necessary to a proper understanding of the questions raised by this appeal may be gathered from the master’s reports and the decree of his honor, Judge Hudson, which should be incorporated in the report of this case, as well as from the previous case of Boykin v. Boykin, 21 S. C., 513.

¶4The Circuit Judge held that the 823 acres covered by the DeSaussure mortgage was not the separate property of Thomas L. Boykin, held by him under, a parol gift from his father, as contended for by the present holders of that mortgage; that as to the amount due on that mortgage, the master was right in reducing the rate of interest from 15 to 7 per cent, on the mortgage after the settlement between mortgagor and mortgagee on the 1st *82March, 1873, when the balance then due on the mortgage debt was ascertained; that in the partition, equity would require that the 823 acres covered by the DeSaussure mortgage should be allotted to Thomas L. Boykin, so as to render the security of the mortgage available, provided the same can be done without prejudice to the other co tenants and without injury to the other mortgagees; that as to the mistake in the record of the Witte mortgage, the holders thereof are not to suffer by the error of the recording officer, but any loss which may occur by reason of such error must fall upon the subsequent purchaser or creditor. But in this particular case, there being no error in the record as to the boundaries, that was sufficient, notwithstanding the mistake in quantity, to affect subsequent purchasers or creditors with notice, and therefore he concurs with the master in holding that the Witte mortgage, as against Armstrong, is good for the 2,000 acres; that Witte Bros, have an equity to have the 2,000 acres covered by their mortgage, or at least so much thereof as will .amount to his share, allotted to Thomas L. Boykin in the partition, provided the same can be done without prejudice to the rights of the other co-tenants and the holders of the senior mortgage to DeSaussure ; that, if it is possible, without prejudice to the rights of the other co-tenants, to allot to Thomas L. Boykin the 823 a.cres and the 2,000 acres, then the DeSaussure mortgage would be a valid lien on 41-90 of the 823 acres, and the Witte mortgage would be a valid lien on 41-90 of the 2,000 acres; that if a sale should be necessary in order to effect partition, then 41-90 of what the 823 acres would bring, should be applied to the DeSaussure mortgage, and 41-90 of what the 2,000 acres would bring should be applied to the Witte mortgage, and 41-90 of what any other lands that Thomas L. Boy-kin’s interest would cover should be applied to the Armstrong mortgage; and that a writ of partition, according to the usual practice of the court, do issue, containing directions to carry out as far as practicable the views above announced.

¶5From this decree each of the mortgage creditors except Witte Bros, appeal upon the several grounds set out in the record, which should likewise be embraced in the report of this ease. Without stating these grounds specifically here, we will proceed *83to state what we understand to be the several questions presented thereby :

¶61st. Whether there was error in reducing the rate of interest on the debt secured by the DeSaussure mortgage from 15 to 7 per cent, per annum.

¶72nd. Whether there was error in holding that if upon partition in kind, the 823 acres be allotted to Thomas L. Boykin as his share, the DeSaussure mortgage would be'a lien only on 41-90 thereof.

¶83rd. Whether there was error in holding that if the land be sold, then only 41-90 of the proceeds of the sale of the 823 acres should be applied to that mortgage.

¶94th. Whether there was any error in the ruling as to the effect of the mistake in the record of the Witte mortgage.

¶105th. Whether there was error in not holding that the Witte mortgage was void for uncertainty in the d'escription of the lands covered thereby.

¶116th. Whether there was error in ascertaining the amount due on the DeSaussure mortgage.

¶121 As to the first and sixth questions, which are more questions of fact than of law, we agree to the conclusions reached by the Circuit Judge for the reasons given by him, and do not deem it necessary to add anything to what he has said.

¶132 As to the second question, we think there was error in holding that if the 823 acres covered by the DeSaussure mortgage should be allotted to Thomas L. Boykin on the partition as his share of the common property, the lien of that mortgage would extend only to 41-90 of the 823 acres. There seems to be no doubt that at the time these several mortgages were given, Thomas L. Boykin supposed that he had a good title in severalty to all of the land, as the survivor of his two brothers, John and Eugene; and this doubtless continued to be his impression until the decision of this court in the case of Boykin v. Boykin (21 S. C., 513, supra), was rendered on the 10th of October, 1884. When, therefore, Thomas L. Boykin executed the DeSaussure mortgage, he must be regarded as intending in good faith to give a lien on the whole of the 823 acres, which he supposed at the time he had a full right to do. But when it was *84ascertained that Thomas L. Boykin was only entitled to an undivided interest in the whole of the land, which seems to be conceded is the 41 — 90 thereof, it does not by any means follow that the lien extends only to that proportion of the 823 acres, after they have been allotted to Thomas L. Boykin as his share of the whole property. His intention was to give a lien on every foot of the 823 acres, and although that intention may be either entirely or partially defeated by the failure to allot the whole or any part of the 823 acres to Thomas L. Boykin as his share of the common property, yet if the whole or any part of the 823 acres should be allotted to Thomas L. Boykin on the partition as his share of the common property, we see no reason why his intention should not be carried out by extending the lien to such portion of the 823 acres, whether it be a part or the whole, as may be allotted to Thomas L. Boykin as his share of the common property. Indeed, we think the question is practically decided adversely to the view taken by. the Circuit Judge in the ease of Young v. Edwards, 33 S. C., 404; for although that was a case of an absolute conveyance by deed, and this is a case of a mortgage, yet we think that the equitable principles upon which that decision rested are equally applicable to the case of a mortgage.

¶14There can be no doubt that where a tenant in common gives a mortgage on a specific part of the common property, describing it by metes and bounds, under a belief that he owned the same in severalty, the mortgagee has an equity to require, when partition is sought by the other co-tenants, that it shall be so made as to allot the specific portion covered by the mortgage as the share of the mortgagor, and thereby save the lien of the mortgage, provided this can be done without prejudice to the rights of the other co tenants; and this equity, where there are several successive mortgages, enures to each mortgagee in the order of the dates of the several mortgages. This is upon the maxim, Qui prior est tempore potior est jure, as well as upon the well recognized doctrine that where a mortgagor has made several successive sales of portions of the mortgaged premises, and the mortgagee comes for foreclosure, the propertj^ must be sold in the inverse order of the sales made by the mortgagor. Norton v. Lewis, *853 S. C., 25 ; Lynch v. Hancock, 14 Id., 66; Warren v. Raymond, 17 Id., 163. It seems to us, therefore, that the holders of the DeSaussure mortgage have the first equity, of course, subordinate to the rights of the other co-tenants, to require that either the whole of the 823 acres or so much thereof as may be necessary to pay their debt be allotted to Thomas L. Boykin as his share of the common property; and that Witte Bros, have a similar equity to require that so much of the land covered by their mortgage as may be necessary to pay .their debt shall be allotted to Thomas L. Boykin as his share of the common property, provided the same can be done without prejudice to the interests of the other co-tenants, and without prejudice to the superior equity of the holders of the senior mortgage. The same principles would apply to the Armstrong mortgage, which being junior to the other two, must take rank in enforcing its equities according to its date.

¶153 This brings us to the third question, which is really disposed of by what we have said in considering the second question; for the same equitable principles should apply, and the same priorities be preserved in case of a sale, as in case of a partition in kind, as far as the same is practicable. It seems to us, therefore, that if a sale becomes necessary, the property should be divided, provided the same can be done without prejudice to the interests of the other co-tenants, so that the specific portions covered by the DeSaussure and Witte mortgages may be sold separately, and that the proceeds of the sale of the 823 acres, or so much thereof as may be necessary to pay the balance due on the DeSaussure mortgage, provided the same does not exceed the share of Thomas L. Boykin in the common property, be applied to the extinguishment of the DeSaussure mortgage, and that if any balance should then remain due to Thomas L. Boykin, so much of the preceeds of the sale of the property covered by the Witte mortgage as may be necessary shall be applied to the satisfaction of the debt secured by the Witte mortgage, provided the amount so applied shall not exceed ■the share of Thomas L. Boykin in the common property; and if ' there should be still any balance due to Thomas L. Boykin on account of his share of the common property, such balance to the *86extent necessary for the purpose shall be applied to the satisfaction of the Armstrong mortgage, and the remainder, if any, shall be paid to Thomas L'. Boykin. If, however, it shall prove to be impracticable for the property to be sold in parcels as above indicated without prejudice to the rights and interests of the other co-tenants, whose superior rights must in all contingencies be .respected, it will then be for the court to devise some other scheme for the preservation, as far as possible, of the respective rights of the several parties, upon the principles above indicated as far as they.can be practically applied. It follows, therefore, that the judgment of the court below must be modified in this respect so as to conform to the principles herein announced.

¶164 As to the fourth question, we agree with the Circuit Judge in the conclusion which he has reached, that the mistake in the record of the Witte mortgage, so far as the number of acres is concerned, does not affect its validity as against the Armstrong mortgage, or limit its lien to the 200 acres mentioned in the record, but that it is a valid lien, prior to that of Armstrong, on all the land found wuthin the metes and bounds set out in the original mortgage as well as in the record thereof. It will be observed that the only mistake in the record of this mortgage is in the number of acres supposed to be contained within the boundaries set forth — the number stated in the record being 200 acres, “more or less,” while in the original mortgage the number stated is 2,000 acres, “more or less” — and the precise question presented is whether such a mistake invalidates the lien or limits it to the number of acres mentioned in the record, so far as the rights of subsequent purchasers or creditors- are concerned. The question is not as to the effect which avy mistake. in the record of a mortgage may have; as, for example, a mistake in stating the amount of the debt secured by the mortgage in the record, as $200, when in the original it is $2,000, and hence such a question does not arise in this case, and will not therefore be considered.

¶17Confining ourselves to the question presented in the l’ecord', we think it clear that a mere mistake in the record of a mortgage as to the number of acres covered by it, especially when the number of acres there stated, as in this case, is accompanied by the *87words, “more or less,” cannot possibly have the effect claimed by the appellant Armstrong. The addition of those words shows very plainly that the number of acres stated is a very unimportant, anc] in most cases wholly immaterial, element in the description of the land intended to be conveyed or affected by the lien of a mortgage. This has long been settled in this State. As far back as 1818, Nott, J., said, in Executors of Peay v. Briggs (2 Mill Con. R.., 98), recognized in the more recent case of Bratton v. Clawson (3 Strob., 130), “That where a person purchases land by metes and bounds, represented to contain a certain number of acres '■more or less,' he is entitled to recover all the lands within the prescribed limits, whatever the number of acres may be. It must be apparent from the words ‘more or less’ that the metes' and bounds are to govern and not the number of acres.” In Gourdin v. Davis (2 Rich., 481), O’Neall, J., said: “I deny that quantity has ever been regarded as a certainty in a deed. It is altogether too uncertain a matter to have such an effect.” In Baynard v. Eddings (2 Strob., 374), it is said: “It is seldom that quantity is of much weight in a question of location.” And when we find that in Fulwood v. Graham (1 Rich., 491), a grant was so located as to cover four times the number of acres stated therein, and that in Sturgeon v. Floyd (3 Rich., 80), a plat annexed to a grant representing the land as containing 14.900 acres was so located as to cover 136,000 acres, we must conclude that the number of acres stated in a deed or other like paper, especially with the superadded words “more or less,” is a very immaterial element of description, and hence an error in stating the number of acres in the Witte mortgage, as it was recorded, cannot 'affect its validity.

¶185 As to the fifth question, it would be sufficient to say that, so far as we can perceive, no such question was made in the Circuit ■ Court, and therefore the question is not properly before us. But if it were, we are not furnished with any evi- , dence which would enable us to say that th'ere was any such uncertainty in the description of the land covered by the Witte mortgage as would render that mortgage void, especially in view of the fact that both the master and Circuit Judge seemed to think that such description was sufficient to counteract any *88erroneous impression which might have been formed from the error in the record as to the number of acres.

¶19The judgment of this court is, that the judgment of the Circuit Court be modified as herein indicated, and that the case be remanded to that court for such further proceedings as may be necessary.