September 15, 1933. The opinion of the Court was delivered by *Page 169 I regret, after careful study and reflection, that I am unable to agree with the conclusions reached by the Chief Justice in his very able opinion in this case. By reference toEpworth Orphanage v. Strange et al., reported in 158 S.C. 379,155 S.E., 594, it will be found that, after that action was instituted, the land bank, appellant here, was made a party by order of Judge Townsend, on motion of counsel for certain defendants. Pursuant to this order, the complaint was amended by inserting the following paragraph: "That the plaintiff is informed and believes that the Federal Land Bank of Columbia has or claims some interest in or to some of the lands herein described and is made a party defendant that it may come in and set up any rights it may have therein."
Service was then made on the bank, but it failed to answer or otherwise plead. On the contrary, by special arrangement between it and the plaintiff, Epworth Orphanage, "an agreement was made in writing that the bank would not file an answer in the case or participate in the proceedings, and that plaintiff's attorneys would take no decree or order in the cases that would in any manner affect the indebtedness to the bank or the mortgage securing same, but that such mortgage should remain a valid lien on the lands described therein." (For an account of the bank's subsequent efforts to relieve itself of the consequences of its mistake, when it found itself in an undesirable situation because of its failure to assert its rights in the action, see 158 S.C. 379,155 S.E., 594.)
Upon consideration, I think the bank is unquestionably estopped by its conduct in the Epworth Orphanage case,supra, from bringing the present action. Under Judge Townsend's order, it was given its day in Court. It, however, disregarded such order and elected to follow a course of action of its own choosing. In short, it chose to trust its interests *Page 170 and rights to its agreement with the orphanage, and it must now take its chances under that agreement.
I think the judgment of the Circuit Court should be affirmed.
A majority of the Court agreeing with the views herein expressed, the judgment of the Court is that the order appealed from be, and the same is hereby, affirmed.
MESSRS. JUSTICES CARTER and BONHAM concur.