Tedder v. Tedder , 123 S.C. 346 ( 1923 )

March 15, 1923. The opinion of the Court was delivered by This is the fourth appeal herein (108 S.C. 271;94 S.E., 19; 2 A.L.R., 438; Id., 109 S.C. 451; 96 S.E., 157; Id., 115 S.C. 91; 104 S.E., 318), this being an appeal from the decree of his Honor, Judge Peurifoy. The exceptions, 15 in number, both by plaintiffs and interveners, allege that the findings of his Honor were erroneous; the contention of the plaintiffs being that the claims of the intervening lien creditors are barred by laches, and that the mortgage of J.P. Kirven is invalid, and that the Circuit Judge erred in not so holding. The plaintiff also challenges the correctness of allowing A. Hyman anything, either in his own claims or that as assignee of Henry T. Thompson. The appellants, Woods and Kirven, by their appeal raise the question: Are the plaintiffs' claims for rents and profits prior and paramount to the liens of said mortgages? Are the appellants' claims barred by laches? Is the mortgage of J.P. Kirven invalid?

His Honor found in favor of the validity of the mortgage of Kirven and the claims of Hyman, the plaintiffs-appellants have the burden of showing this court that the finding of his Honor was against the preponderance of the evidence. This they have failed to do, and the exceptions raising this question must be overruled.

As to the exceptions complaining that his Honor was in error in deciding that plaintiff's claim for rents and profits was proper and superior to the liens of said mortgage: That the plaintiffs had no lien on the lands in question for rents and profits is conclusively decided by the case of Vaughan v. Langford, 81 S.C. 282;62 S.E., 316; 128 Am. St. Rep., 912; 16 Ann. Cas., 91, and by reference to this decision the true rule can be found.

From this it is apparent that, if there was notice oflis pendens, and if the land were divided in kind, the part awarded defendants would not be charged with a lien in favor of plaintiffs for rents and profits. From the fact that lis pendens did not have the effect of creating such a lien, the plaintiffs do not have a lien superior for rents and profits, and the claims of appellants as mortgagees to the proceeds of one-fourth of the lands are superior and paramount to all other claims, including plaintiff's claim for rents and profits. It was not necessary for defendants to intervene until it was decided that mortgagors title was invalid as to three-fourths of the land in question and that lands should not be divided in kind, but should be sold for partition. Until these questions were disposed of, to have intervened would have been premature and useless.

If the Court had decided that land should be divided in kind and not sold, and one-fourth set off to the defendant, intervention would have been unnecessary, because defendants would have received their part of the land, subject to the mortgages, unimpaired. Appellants intervened as soon as it was decided that their mortgages were invalid as to three-fourths of the land in question, and land must be sold for partition, and it was not until then that intervention was necessary and proper. They acted promptly and intervened at the same term of the Court that it was decided that plaintiffs had three-fourths of the land, and lands ordered sold for partition.

These exceptions are sustained, and decree of his Honor should be modified to this extent.

Judgment modified.

MR. CHIEF JUSTICE GARY and MR. JUSTICE MARION concur.

MR. JUSTICE FRASER disqualified.