The opinion of the court was delivered by
Mr. Justice McIver.
The sheriff of Spartanburg County having levied on a tract of land in the possession of plaintiff, known as the “Tom Wofford place,” under an execution issued to enforce a judgment recovered by F. M. Trimmier against one John Winsmith on the 18th of March, 1879, which land was then owned by said Winsmith, this action was commenced to enjoin the sale until certain other property, formerly belonging to Win-smith, should be exhausted; the same, as plaintiff contends, being first liable to satisfy said judgment. All parties interested having been brought in as defendants to this action, the question presented is as to the order in which the property held by the several parties is liable to be subjected to the payment of said judgment. [518] There are, however, two preliminary questions raised by the appellants which must first be disposed of before the main question in the case can arise. These questions are, (1) whether the Trimmier judgment is a valid judgment; (2) if so, whether it has not been satisfied.
The validity of the judgment is assailed upon the ground that it was a judgment by confession before the clerk, and that Trimmier, being himself the clerk at the time, was not competent to take or enter such a judgment in his own favor. This question has already been decided in the case of Trimmier v. Winsmith (23 S. C., 449), which was a proceeding to renew the execution previously issued to enforce said judgment, in which the same question was there raised by Winsmith as one of the grounds upon which he based his resistance to the renewal. But the court held, that while it was not a commendable practice for a clerk to take and enter up a confession of judgment in his own favor, yet that a judgment so taken and entered would be good and valid against the judgment debtor. Now, while it-is true that the appellants, not having been parties to that proceeding, would not be bound thereby as a matter res adjudicata, and while the decision only went to the extent of holding the judgment valid as between the parties to it, yet it seems to us that the principles upon which that decision rested require that we should, in the absence of any allegation or proof of fraud in the taking of the judgment, hold the judgment valid in this case. The effect of that decision was to make that judgment a lien upon all the real estate of Winsmith in the County of Spartanburg at the date of its entry; and all parties dealing with that property, either by taking liens upon it or purchasing it, did so subject to the lien of that judgment.
But, assuming the judgment to be valid, it is next contended that it has been satisfied by operation of law. The facts upon which this contention is based are these: Winsmith owned a valuable tract of land in Union County, upon which the following liens had been obtained: (1) A judgment in favor of Briggs; (2) a mortgage in favor of the plaintiff herein and said Trimmier; (3) the aforesaid judgment in favor of Trimmier, a transcript thereof having been filed in the proper office in Union County, besides other junior judgments, which need not be further noticed,[519] as the holders thereof make no claim. On the 1st of December, 1879, the Union County land, having been levied on under the Briggs judgment, was sold, it being understood, and so announced at the sale, that the proceeds of the sale .should be applied to the aforesaid liens, including the mortgage, according to their priority as fixed by their dates; and the same were so applied by the sheriff of Union County under an order passed by his honor, Judge Wallace, upon the petition of Trimmier and Moore, the mortgagee. The result was, that the proceeds of the sale, after satisfying the Briggs judgment and the mortgage, were insufficient to satisfy in full the Trimmier judgment, though, if the proceeds of sale had not been applied to the mortgage, they would have been amply sufficient to satisfy the Trimmier judgment in full.
The appellants now contend, that, as matter of law, no part of the proceeds of the sale of the Union County land could have been properly applied to the mortgage thereon, but that the same were properly applicable to the judgments in their order, and such application, if now required, as it should be, would satisfy the Trimmier judgment. This matter, also, has been adjudged in the ease of Trimmier v. Winsmith, supra ; and although, by reason of the fact, that these appellants were not parties to that case, the question cannot be regarded as res adjudieata as to them, yet it did determine that, as between Winsmith and Trimmier, the judgment was not fully satisfied, either in fact or in law, by the proceeds of the sale made 1st December, 1879, because, while .Winsmith might possibly have then required such an application of the proceeds of sale as would have satisfied the Trimmier judgment, ye^ having consented that so much of said proceeds as were necessary for the purpose should be applied to the satisfaction of the mortgage, there was a balance then left unpaid on the Trimmier judgment. Now, as the rights of appellants arose subsequent to the sale of the 1st of December, 1879, as will be presently seen, they have no right to complain of any arrangement that Winsmith then saw fit to make with his then creditors; for, conceding that Winsmith might then have required that the proceeds of the sale made by the sheriff of Union should be applied to the judgments in their order, yet he certainly had the right to consent to a different application where the rights of third persons had not arisen. [520] What would have been the result if the rights of these appellants had arisen before the sale of 1st December, 1879, we need not consider, under the facts of this case; and wé intimate no opinion as to that. We agree, therefore, with the Circuit Judge, that the Trimmier judgment must be regarded as a valid judgment, and that it was neither in fact nor in law satisfied by the sale of the Union County lands.
The next inquiry is as to the order in which the property now held by the several parties, which was originally subject to the lien of the Trimmier judgment, shall be resorted to for the purpose of satisfying the balance now due on that judgment. The facts upon which this question is to be determined are as follows: On the 28th of February, 1880, Winsmith mortgaged two tracts, of land — one known as the “Tom Wofford .place,” and the other as the “Nimrod Moore place” — to the plaintiff and one A. G-. Floyd to secure the payment of a debt of $1,075. On the 7th of May, 1881, Winsmith sold and conveyed the Nimrod Moore place to C. E. Smith for the consideration of J>2¡000, and on the same day mortgaged to said Smith a parcel- of land in the city of Spartanburg containing 20 acres. On the 3rd of February, 18.82, Winsmith mortgaged a tract of land, containing seven acres, to F. M.Jlrunmier. On the 18th of August, 1883, Winsmith sold and conveyed to L. A. Mills the White Oak tract, containing 308 acres; and on the 24th of October, 1883, Winsmith sold and conveyed a tract, containing 184 acres, to R. C. Hunter. Under proceedings to foreclose the mortgage of Winsmith to the plaintiff and Floyd, the land covered thereby was sold on the 1st of October, 1884, when the Tom Wofford place was bought by the plaintiff herein for the sum of $1,310, and the Nimrod Moore place by C. E. Smith, above named, for $390. On the 5th of January, 1885, or perhaps some time in 1884, the 7-acre tract was sold under proceedings to foreclose the mortgage to Trimmier, and bought by the defendant, M. J. Thomson; and on the 4th of May, 1885, under proceedings instituted by C. E. Smith, to which Trimmier, as a holder of a prior lien, was madé a party, to foreclose the mortgage thereon, the 20-acre tract was sold, and bought by defendant, S. J. Simpson.
It thus appears that the liens on the real estate of Winsmith,. [521] as they originally stood, were as follows : (1) The Trimmier judgment, which was a lien on the entire real estate; (2) the mortgage to plaintiff and Floyd; which was a lien only on the Tom Wofford and Nimrod Moore places; (3) the mortgage to O. E. Smith on the 20-acre tract; (4) the mortgage to Trimmier on the seven-acre tract. But the order in which the actual sales were made was as follows: (1) The sale of the Nimrod Moore place to G. E. Smith ; (2) the sale of the White Oak tract to L. A. Mills; (3) the sale of the 184-acre tract to Hunter; (4) the sale of the Tom Wofford place and of the Nimrod Moore place, under proceedings to foreclose the mortgage thereon, to the plaintiff and Smith, respectively; (5) the sale of the 7-acre tract under proceedings to foreclose the mortgage thereon; (6) the sale of the 20-acre tract under proceedings to foreclose the mortgage thereon, to which Trimmier, the judgment creditor, was a party.
Under this state of facts, the Circuit Judge, after having determined that the judgment of Trimmier was a valid, unsatisfied judgment, as we have stated above, held that by reason of the fact, that Trimmier was a party to the actions for foreclosure of the mortgages on the 7-acre tract and the 20-acre tract, and suffered the sales therein ordered to be made free from the lien of his judgment, those tracts were now exempt from the lien of such judgment, and that, for the balance due on the Trimmier judg-. ment, resort must be had to the several tracts in the following order: first, to the 184-acre tract sold to Hunter; next, to the White Oak tract, sold to L. A. Mills; next, to the Nimrod Moore tract, sold to O. E. Smith; and last, to the Tom Wofford tract, sold to the plaintiff. It is, perhaps, proper to state here, that a defence set up by the owners of the Hunter tract, based upon an alleged estoppel, which will be more fully stated hereafter, was overruled.
From the judgment rendered below, the heirs of Hunter and the heirs of Mills, both of whom had died, alone appeal upon the several grounds set out in the record, by which, in addition to the questions already considered, as to the validity of the Trimmier judgment, and as to whether the same should not be regarded as satisfied by operation of law, they make, substantially, the following questions : (1) Whether the order of liability of the several [522] tracts of land to the satisfaction of the Trimmier judgment should be fixed by the dates at which they were actually sold, or whether the dates should be ascertained by reference to the dates of the mortgages under which some of the tracts were sold; (2) whether, as against these appellants, the Trimmier judgment should not be reduced by the value of the 7-acre and the 20-acre tracts, which Trimmier allowed to be sold free from the lien of his judgment; (3) whether the present holder of the Trimmier judgment is not estopped, by his representations to Hunter when he bought, from enforcing the lien of the judgment against the Hunter tract; (4) if so, whether the Trimmier judgment should not be credited with the value of the Hunter land before it can be enforced against the tract bought by L. A. Mills. Counsel for the holder of the Trimmier judgment has, in accordance with the proper practice, also given notice that he will endeavor to sustain the judgment below so far as the matter of estoppel is concerned, upon the ground that the Circuit Judge erred in receiving the testimony of J. H. T. Hunter, which was duly excepted to at the time.
It is not, and cannot be, denied that the rule is well settled, that where a judgment debtor sells portions of his land covered by the lien of a judgment, at different times, to successive purchasers, the first purchaser has an equity to require that the lien shall be first enforced against the last parcels purchased, so that the land shall be sold under the lien in the inverse order to that in which it was sold by the judgment debtor. This well settled rule rests upon the principle, that where the first purchaser buys, leaving in the hands of the judgment debtor property sufficient to satisfy the judgment either in whole or in part, as the case may be, it would be manifestly inequitable to allow his property sold for the payment of the debt of his vendor, until all the property of the vendor is exhausted, and that when the second purchaser buys, he buys subject to such equity. To use the language of Kent, Ch., in Clowes v. Dickenson (5 Johns. Ch., 241), “he sits in the seat of his grantor.” It seems to us, that the same principle applies with equal force to a case where there are several successive mortgages on different tracts of land, all of which are covered by the lien of a senior judgment; and that in such a case the first mortgagee has an equity to require that resort shall first [523] be had for the satisfaction of the lien of the judgment to the lands last mortgaged. See Bank v. Howard & Garmany, 1 Strob. Eq., 173, and the eases therein cited.
But it is contended, as we understand, that while this may be true so far as the rights of a mortgagee are concerned, it is not necessarily true as to the rights of a purchaser at a sale for the ^ foreclosure of,such mortgage. That is to say, while it may be true that a mortgagee may have the right to invoke the equity above mentioned for the purpose of securing the payment of his mortgage debt, yet that it does not follow, necessarily, that a third person, buying at a sale for foreclosure of the mortgage, has any such equity, especially where, as in this case, the event shows that the mortgaged property was more than sufficient to pay the mortgage debt, thus leaving in the hands of the original debtor property in the shape of what is called the “equity of redemption,” until the sale for foreclosure was made. There is much force in this view. As a mortgage, under our law, is not a conveyance, the legal title to the property remains in the mortgagor until sold under proceedings for foreclosure; but, such title being subject to the lien of the mortgage, and to sale in satisfaction of such lien, what really is in the mortgagor is only so much of thel' property, or its value, as may be in excess of the mortgage debt. What thus remains in the mortgagor is as much his property, and, as such, subject to the payment of his debts, as any other property he may have not covered by any lien.
Now, while it appears that Winsmith sold his equity of redemption in the Nimrod Moore place to C. E. Smith before either Mills or Hunter bought, it does not appear that his equity' of redemption in the Tom Wofford place was ever sold until after both Mills and Hunter bought; and hence that interest in the Tom Wofford place, whatever it may be, should first be subjected to the payment of the Triimmier judgment, before resort can be had either to the Mills or Hunter land. It seems to us that it would not be just to use the result of the sale of the Tom Wofford place under the judgment for foreclosure as a test of the value of the equity of redemption in that place, because both that and the Nimrod Moore place having been embraced in the same mortgage, it would be equitable that each of those places should [524] be made to contribute ratably to the payment of the mortgage debt. But as Winsmith’s equity of redemption in the last named place had been previously sold by him to Smith for $2,000 — a sum more than sufficient to satisfy the mortgage debt — it is not improbable that the Tom Wofford place was made to contribute more than its fair proportion to the payment of the mortgage debt by the sale for foreclosure, as it brought at that sale $1,310, while the Nimrod Moore place only brought $390. In order, therefore, to ascertain the value of the equity of redemption in the Tom Wofford place, which still remained the property of the judgment debtor at the time of the sale, both to Mills and Hunter, and which, therefore, was first liable to the payment of the Trimmier judgment, the value of the two places — Tom Wofford and Nimrod Moore — should be ascertained by testimony; and this will afford the means of determining the proportion in which each was equitably liable for the mortgage debt, and deducting the proportion for which the Tom Wofford place was liable from its real value will give the true value of the equity of redemption in that place, to which extent that place should first be subjected to the payment of the Trimmier judgment.
The same principles would have been applicable to the equity of redemption in the 7-acre and the 20-acre tract, which were not sold until after the sales to Mills and Hunter; but as the Circuit Judge held that both of those tracts -were exempt from the lien of the Trimmier judgment, and as there was no exception to or appeal from such ruling, no part of either of these tracts' can now be subjected to the payment of the Trimmier judgment. It is true, that while none of the parties appealed from so much of the decree as exempted those tracts from liability to the Trimmier judgment, the heirs of Mills and of Hunter have appealed upon the ground that the Circuit Judge erred in not holding that, as against these appellants, the Trimmier judgment should be reduced by the value of those two tracts ; and, therefore, it is necessary to consider that question. Upon the' principles above announced, this position of appellants cannot be sustained as to the entire value of those tracts, as the mortgages thereon antedated the sales to Mills and Hunter, but should be sustained as to the value of the equity of redemption therein, to be ascertained in [525] the mode indicated as to the Tom Wofford place ; for such equity of redemption was not sold until after the sales to Mills and Hunter were made. Trimmier, having been a party to the actions for the foreclosure of the mortgages on both of these tracts, must be regarded as having voluntarily acquiesced in the application^ of the value of the equity of redemption therein to the mortgages, one of which he held himself, when the same was, in equity, first applicable to his judgment, and must, therefore, account for such misapplication by a reduction, as to these appellants only, who alone make the question of his judgment, to the extent of such value, if, indeed, the testimony shall show it to be anything.
It only remains to consider the matter of estoppel set up by the Hunters, and the consequent effect thereof, if allowed, on the land bought by Mills. As this depends largely, if not entirely, upon the testimony of J. H. T. Hunter — one of the heirs of the purchaser, R. C. Hunter, and a party to this action — it will first be necessary to determine the question raised by counsel representing the Trimmier judgment as to whether such testimony, which is claimed to be incompetent under section 400 of the Code, was admissible. This witness was not called to testify as to any transaction or communication between the deceased, Trimmier, and the witness, but as to a transaction or communication between Trimmier and a third person — the purchaser, R. C. Hunter — and hence, under the cases of Roe v. Harrison (9 S. C., 279), and Hughey v. Mchelberger (11 Id., 36), as well as under the express terms of the section, “between such witness and a person at the time of such examination deceased,” &e., we do not think there was any error on the part of the Circuit Judge in receiving the testimony in question.
What, then, was the effect of that testimony ? It seems to us to be impossible to avoid the conclusion from that testimony, which is all set out in the “Case,” that R. C. Hunter was induced to buy the land which it is now proposed to subject to the payment of the Trimmier judgment by the positive assurance of Trimmier that his judgment would never be enforced against that land. According to that testimony Trimmier, when applied to by Hunter for information and advice as to whether he would be [526] safe in buying the land, after informing him that he held this judgment against Winsmith, and that Winsmith had a plenty of other property to pay it, used this language : “I will assure you what I have got against Winsmith will never cause you any trouble.” In the face of such testimony, which was manifestly credited by the Circuit Judge, to allow this judgment now to be enforced against this land, probably to the extent of its full value, would be highly inequitable; and we must, therefore, conclude that the administratrix of Trimmier is estopped from doing so.
If this be so, then it is contended by the other appellants, the heirs of Mills, that inasmuch as Trimmier has estopped himself from subjecting the Hunter land to the payment of his judgment, which would otherwise have been liable to be exhausted before the land bought by Mills could be reached, the said judgment cannot now be enforced against the Mills land, except for such balance as may remain due thereon after deducting the value of the Hunter land. This position is, we think, well taken ; for, as Mills, by the voluntary act of Trimmier, has been deprived of his equity to throw the Trimmier judgment upon the Hunter land before the land bought by Mills could be reached, that judgment can now be enforced against the Mills land only to the extent for which it would have been liable if Trimmier had not by his own act defeated the original equity of Mills. But the other parties to this action who may be affected thereby, not having raised any such question, either by exception or otherwise, are now precluded from doing so, and therefore cannot avail themselves of the benefit which the heirs of Mills have claimed by their exceptions.
The practical result, therefore, must be this: that the Trimmier judgment cannot be enforced against the Hunter land at all, but that, for any balance which may be due thereon after deducting the value of the Hunter land, as well as the value of the equity of redemption in the 7-acre tract, the 20-acre tract, and the Tom Wofford tract, should first be enforced against the Mills land, and that the balance remaining due on the Trimmier judgment after deducting such amount as may be paid thereon out of the Mills land, if any, but wdthout deducting the value of the Hunter land or the value of the equity of redemption in either [527] of the three tracts above mentioned, be paid first out of the Nimrod Moore place, and next out of the Tom W°ff°rcl place.
There being no appeal by any of the parties from so much of the decree as relates to the costs, it must necessarily be affirmed in that respect.
The 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 to carry out the views herein announced. • '
A petition for a rehearing was filed by respondent, alleging certain errors in the order in which the lands were held to be liable to the Trimmier judgment.'
May 2, 1890. The order of the court thereon was passed
Per Curiam. We have carefully examined this petition, and finding that no material fact or principle of law has been overlooked, there is no ground for a rehearing. The petition is therefore dismissed.
A petition for rehearing was also filed by O. E. Smith, in which he alleged that he had no notice of the trial, the decree, or the appeal, and that he had a release of the lien of the judgment on the Nimrod Moore place; that he had put in a formal answer setting -up this release, and had not supposed it necessary to employ counsel.
May 2, 1890. The order of the court thereon was passed
Per Curiam. The facts stated in this petition are not such as, in our judgment, can be considered on a motion for rehearing. The record upon which this appeal was heard by this court shows that the petitioner was duly made a party defendant, and filed an answer, in which he “admits the allegations of the complaint, and submits his rights to the protection of the court” ; that the Circuit decree adjudged, among other things, that the land of petitioner, the Nimrod Moore place, was liable to be sold before resort could be had to the land of the plaintiff, the Tom Wofford place; that from such decree there was no appeal by any of the [528] parties, except the heirs of Mills and the heirs of Hunter; and that “due notice of appeal” was given by the said heirs. Under a record exhibiting these facts, to which no objection was inter- ■ posed, by any of the parties, this court was bound to assume, and did assume, that all parties interested were duly served with notices of the appeals On behalf of' the heirs of Mills and the heirs of Hunter, and proceeded to adjudicate the several questions presented by such appeals. The facts now relied upon by the petitioner to sustain his application, it is conceded, did not appear in the case as prepared for argument in this court; and therefore it is quite certain that this court has not overlooked any ■fact or principle of law material to the case as submitted for the decision of this court. As to the application that the petitioner be allowed now-to come in “and amend the brief” by inserting therein new and additional facts, we think it comes too late, after the case has been heard and determined by this court.
Whether the facts stated in the petition are such as would entitle the petitioner, by proper proceedings in the Circuit Court, to have the Circuit decree opened, is a matter which we have no authority now to consider; and as to that we are not to be regarded as expressing, or even intimating, any opinion either one way or the other. But with a view to afford the petitioner an opportunity to make such application, if he shall be so advised, the remittitur will be retained until the further order of this court. Though, to avoid any misapprehension, we must again repeat that this is not to be regarded as any indication whatever that such application can, in our judgment, be successfully made. It is therefore ordered, that the petition be dismissed without prejudice to the right of the petitioner to make such application as he may be advised to the Circuit Court for relief.