I think that the Court below correctly held, for reasons fully set forth in Judge Lide's decree, that the lien of the mortgage had expired before the commencement of the action, and that the provisions of the Statute of Limitations require the dismissal of the complaint.
In my opinion, the judgment of the Circuit Court should be affirmed, and I, therefore, adopt the decree of that Court as a dissenting opinion. Let it be reported.
MR. ASSOCIATE JUSTICE BAKER concurs.
The Circuit Order of Judge Lide, requested to be reported as a dissenting opinion, follows:
This is an action for the foreclosure of a real estate mortgage, and the cause was referred to Honorable John S. Bowman, County Judge, as Special Referee, by a general order of reference dated November 10, 1939. Pursuant thereto testimony was taken and the report of the Special Referee, dated May 14, 1940, was duly filed, whereupon exceptions were taken thereto which were argued before me at my chambers in Orangeburg, on November 27, 1940, and the matter was taken under advisement.
These exceptions need not be considered in detail, especially for the reason that except in one vital particular I find myself in agreement with the well-prepared report of the learned Referee. However, I do not concur with him upon the very essential question as to whether the lien of the mortgage involved herein had expired before the commencement of the action. It was his view that the action had been commenced before the expiration of the lien because in his opinion there was compliance by the plaintiff with the provisions of Section 357, Code 1932, while after a careful review of the entire record, in the light of the terms of this section, I am impelled to hold that the lien had expired before *Page 61 the action was commenced, or attempted to be commenced, within the meaning of that section, and that the provisions of the Statutes of Limitations require the dismissal of the complaint.
The mortgage involved in this action covers a certain tract of land in Orangeburg County, and was given on April 9, 1918, by Edgar D. Sasportas, to the Edisto National Bank, of Orangeburg, South Carolina, to secure a note of even date in the sum of $1,083.00, maturing one year after date, with discount before and interest after maturity, at the rate of eight per cent. per annum, payable annually; and the mortgage was duly recorded on April 12, 1918. Various payments were made thereon, but it appears that the last payment was made on November 1, 1931, and there was no acknowledgment of amount due, or any note of a payment, recorded. The mortgage, a including the indebtedness thereby secured, was in due course acquired by the plaintiff above named. The mortgagor, a resident of Charleston County, died some time in the year 1930, leaving in full force and effect his last will and testament admitted to probate in that county on March 20, 1930, under which the mortgaged premises were devised to Ellen F. Sasportas and Adelaide D. Sasportas, or the survivor; and thereafter Ellen F. Sasportas died leaving in full force and effect her last will and testament, whereby the said Adelaide D. Sasportas acquired the interest of the testatrix in the land in question, and thus became the sole owner in fee of the mortgaged premises. And she was such sole owner at and before the commencement of this action although in the meantime, it appears that the land was sole for taxes and was acquired by the defendant Erienne S. Hair (now Erienne H. Young), who afterwards conveyed such interest as she might have acquired under the tax deed to Adelaide D. Sasportas, the latter being designated in the title to the pleading as Addie Sasportas.
The original complaint herein alleges the execution of the note and mortgage, their ownership by the plaintiff, and *Page 62 that they are past due and unpaid, the alleged balance due being $959.00, with interest from November 1, 1931, and further alleges that the mortgagor has died leaving as his sole heirs-at-law his nieces and nephews named as defendants, including Addie Sasportas; and also alleges that the defendant Erienne S. Hair is made a party because she "has or claims" some interest in the mortgaged premises; and it is then further alleged that the defendants H. Benjamin and Virgil P. Kizer had gone on the mortgaged real estate and cut the timber therefrom, for which they should be made to account to the plaintiff, and that judgment should be had against them for $5,000.00 and for the damages done by them to the premises. The prayer of the complaint is for judgment against Benjamin and Kizer in the sum of $5,000.00 and for the usual relief in a foreclosure suit, including judgment for the mortgage debt, but it should be stated that a deficiency judgment could not have been rendered because the executor of the will of the deceased mortgagor was not made a party to the cause.
As will be seen from the foregoing, the lien of the mortgage expired on April 9, 1939, pursuant to the terms and provisions of Section 8864, Code 1932, nothing having been done thereunder to extend the lien. The original summons and complaint were not served on Adelaide D. Sasportas until May 15, 1939, at which time they were personally served on her at Charleston, S.C. by the sheriff of Charleston County. Hence of course it is quite clear that the lien had expired at the time the service was made, and the plea of the Statutes of Limitations constitutes a complete bar, unless the case comes within the provisions of Section 357, Code 1932, relating to the commencement of an action by an attempt to do so, as therein provided. Hence it will be necessary to state the facts relating to the commencement of the action in some detail.
The original summons and complaint were lodged in the office of the sheriff of Orangeburg County on the 7th day of April, 1939, two days before the expiration of the lien, *Page 63 and while the records in the sheriff's office do not show that copies thereof were filed with the original for the purpose of service, it does appear from the testimony of one of the attorneys for the plaintiff that such copies were filed for this purpose, although they were withdrawn later, because it was learned that certain of the defendants resided in Charleston. The defendants Benjamin and Kizer did reside in Orangeburg County and they were served, although just when and by whom does not appear in the record.
However, the point was duly raised by demurrer that Benjamin and Kizer were not proper parties to this action and that two causes of action which could not be united were attempted to be stated in the original complaint. The matter came on for a hearing before Hon. M.M. Mann, presiding Judge, and he sustained these demurrers and dismissed the defendants Benjamin and Kizer from the suit, the following being the pertinent portions of his order, dated August 29, 1939:
"That the demurrers are sustained in so far as the improper and irrelevant presence of the defendants Benjamin and Kizer is concerned and their names are stricken as parties defendant; that the plaintiff have leave to amend its complaint, if it so desire, in such particulars as it may desire, within five days from the filing of this order; and that the defendants have twenty-five days from the filing of this order to answer or plead as they may be advised."
This was a clear adjudication by the Court that Benjamin and Kizer were not, and never were, proper parties to the cause, and no appeal was taken from the order of Judge Mann. Hence it became and is the law of the case. And indeed, it is difficult to see how any other conclusion could have been reached by the Court in the consideration of the original complaint.
Furthermore, it appears from the undisputed evidence in the record, and it was so found by the Special Referee, that the land was sold for delinquent taxes some time in the year 1934, and that thereafter, some time in the year 1936, these *Page 64 taxes were paid by the defendants Benjamin and Kizer under an agreement made with a representative of the estate of Edgar D. Sasportas, in consideration of which they acquired the timber on the premises, which they had cut and removed prior to the commencement of this action. As a part of this same arrangement Erienne H. Young acquired the tax title, which she subsequently conveyed to Adelaide D. Sasportas.
Pursuant to the order of Judge Mann the complaint was duly amended, and as so amended it states a single cause of action for the foreclosure of the mortgage given by Edgar D. Sasportas, alleging that he left as his heirs-at-law his nieces and nephews, including Adelaide D. Sasportas; and further, that the defendant Hair was made a party because she has or claims some interest in the mortgaged real estate. The prayer of the complaint is for judgment and for a decree of foreclosure; and as stated with reference to the original complaint, it is likewise true of the amended complaint that there is no basis for a deficiency judgment.
Adelaide D. Sasportas and Erienne H. Young were the only defendants served with the amended complaint. In fact the heirs-at-law of Edgar D. Sasportas named as defendants (except Adelaide D. Sasportas) were not served with the original summons and complaint, although one of them resided in Orangeburg County, but they had no interest whatever in the land and of course were not proper parties, having been named as defendants by mistake.
The defendants Erienne H. Young and Adelaide D. Sasportas answered the amended complaint, and the Young answer shows that she claims no interest whatever in the mortgaged premises, although she had previously acquired a tax title thereto, having subsequently conveyed the same to Adelaide D. Sasportas. The Sasportas answer to the amended complaint sets up among other things the Statute of Limitations (Section 8864 and 387, Code 1932), the same being fully and correctly pleaded.
It is provided in Section 357 that an action is commenced as to each defendant when the summons is served on him *Page 65 "or on a co-defendant, who is a joint contractor, or otherwise united in interest with him." So far as this provision of the section is concerned it is clear that it has no effect on the instant action. But the plaintiff contends that the instant case comes within the remainder of the section, which is as follows:
"An attempt to commence an action is deemed equivalent to the commencement thereof, within the meaning of this title, when the summons is delivered with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendant or one of them usually or last resided; or, if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business."
The delivery of a summons to a sheriff with intent that it shall be actually served is rightly made equivalent to such service, because normally process is diligently served by an officer of the Court; and if the summons in the instant case had been delivered to the sheriff of Charleston County on or before April 9, 1939, with intent that it should be served, there is no doubt but that the action would under the statute be deemed to have been commenced at that time. although service was actually made later. But here the summons was delivered to the sheriff of Orangeburg County, in which county it appears that neither the defendant Adelaide D. Sasportas, nor the defendant Erienne H. Young, had ever resided. In fact, the latter defendant resided outside the State.
However, the language of the section is that it shall be delivered to the sheriff of the county "in which the defendant or one of them usually or last resided." And it is argued that since the defendants Benjamin and Kizer actually lived in Orangeburg County the delivery to the sheriff of Orangeburg County was sufficient to commence this action against the other defendants who were afterwards served. *Page 66
This section has been referred to in a few cases by our Supreme Court, but the point involved in the instant case has never been before the Court. See Montague v. Stelts,37 S.C. 200, 15 S.E., 968, 34 Am. St. Rep., 736, andMorgan v. Morgan, 45 S.C. 323, 23 S.E., 64. But giving full face value to the language of the section, while delivery of the summons to the sheriff of a county with intent that the same be served is sufficient if any of the defendants reside in that county, yet such resident defendant must of course be at least a proper party to the cause, for obviously one could not toll the Statute of Limitations by adding some person as a party defendant who has no place in the action. The complaint must therefore show on its face that any such resident defendant is a proper party. But here we have an adjudication of the Court to the effect that Benjamin and Kizer, the resident defendants, were not proper parties to this action, and they have been dismissed therefrom and their names stricken out. "The effect of an order striking out the name of a defendant is as if such defendant had never been a party." 47 C.J., 171. How then can it be said that any of the defendants, within the meaning of Section 357, resided in Orangeburg County?
The notice of the pendency of the action was filed in the office of the Clerk of Court of Orangeburg County on April 7, 1939, and it is contended that this in itself was a sufficient commencement of the action. But it is quite obvious that the filing of a lis pendens, including the filing of the summons and complaint, in the clerk's office does not constitute the actual commencement of an action, for the only purpose of filing a lis pendens is to give notice to a purchaser or an encumbrancer of the property affected thereby; and it is provided in Section 432, Code 1932, relating to a lis pendens, that "For the purposes of this section, an action shall be deemed to be pending from the time of filing such notice," provided, that service shall be made within sixty days after such filing, etc. Hence it will be seen that under the express provisions of this section the action is deemed pending only *Page 67 for the purposes therein stated, to wit, to give notice to third parties.
My conclusion is that with Benjamin and Kizer eliminated the action as originally commenced was solely against the defendants Adelaide D. Sasportas and Erienne S. Hair Young, and since they were not served on or before April 9, 1939, the lien of the mortgage has expired and the bar of the statutes is complete, and hence the exceptions to the report of the Special Referee on this point should be sustained, and the complaint dismissed with costs. And it is so ordered.