dissenting. Being unable to concur in the views taken of this case by Mr. Justice Pope, I propose to state, as briefly as practicable, what I understand to be the correct view. For a proper understanding of the questions presented by this appeal, it will be necessary to state substantially the facts out of which these questions arise, as to which there seems to be no dispute. The land which is the subject of the action, belonging "to the defendant, Trantham, was covered by sundry liens, having priority according to date as follows: 1st. A judgment in favor of Creighton & Son, entered in February, 1888. 2d. A mortgage held by plaintiffs, dated 24th April, 1888. 3d. A judgment in favor of Patterson, Renshaw & Co., entered 20th February, 1891. Under an execution issued upon this last mentioned judgment the land was levied upon on the 12th of December, 1892, and on the next day, 13th December, 1892, the same was advertised for sale, on the first Monday of January, 1893. On the same day, to wit: 13th December, 1892, the present action was commenced to foreclose the mortgage above mentioned, and notice of lis ftendeus was then filed. To this action Patterson, Renshaw & Co. were made parties defendants, but Creighton & Son were not made parties. On the first Monday in January, 1893, the land was sold, under the levy above mentioned, by the coroner of the county (the sheriff being disqualified), and bid off by J. T. Hay, who complied with the terms of sale and received titles for the land. Thereupon the plaintiffs amended their complaint by making the said J. T. Hay a party defendant, and he filed his answer, setting up title in himself superior to the lien of plaintiff’s mortgage. „
It is not, and cannot be, denied, since the cases of Vance v. Red, 2 Speer, 90; Agnew v. Adams, 17 S. C., 364; Henderson v. Trimmier, 32 S. C., 269, and Garvin v. Garvin, *30934 S. C., 388, that where land is sold under an execution to enforce a judgment junior to a mortgage, if there is, at the time of the sale, a judgment having a lien on the land senior to that of the mortgage, the title of the purchaser will be protected by such senior judgment, and the lien of the mortgage will be divested by such sale. That was precisely the case in Henderson v. Trimmier, supra, and is so in the case now under consideration, except that here an action had been commenced before the sale, and notice of lis pendens had been filed, and this circumstance is relied upon to take this case out of the operation of the general rule. So that the only question presented by this appeal is, whether the fact that the plaintiffs had commenced their action, and filed notice of lis pendens before the sale under which Hay claims, is sufficient to take this case out of the operation of the admitted general rule.
It certainly cannot be contended, with any show of propriety, that the effect of filing the notice of Us pendens is to extinguish or defeat the prior lien of the senior judgment; for that would put it in the power of one who holds a mortgage on land to supersede the lien of a judgment superior in rank to’ that of the mortgage, by simply commencing an action to foreclose his mortgage, and at the same time filing his notice of Us pendens; and surely no court would sanction such a doctrine as that. But that, as I understood it, is not what appellants contend for in this case. Their contention is that, so far as their rights are concerned, the sale under which Hay claims should be treated as a nullity, and that the Court should proceed to grant a judgment of foreclosure and sale under their mortgage; and that the proceeds of such sale should be applied to the extinguishment of the liens upon the land in the order of their rank as they stood at the commencement of the action — that is to say, first to the payment of the Creighton judgment, next to the payment of the plaintiffs’ mortgage, and next to the payment of the judgment in favor of Patterson, Renshaw & Co. This would, of course, *310involve the necessity of setting aside the sale tinder which the defendant, Hay, claims; and it is difficult to perceive upon what ground this could be done, especially in view of the fact that Creighton & Son, to whose judgment the sale must be referred, are not parties to the action. No fraud is alleged, and certainly none has been proved, in making such sale, and, so far as I can perceive, no illegality of any kind is, or could be, imputed to that sale. It was made under a valid execution, so far as appears, having a lien on the land, and the proceeds of such sale have been applied to the oldest lien on the land; so that the language of Judge Fraser, in Henderson v. Trimmier, supra, and quoted with approval by this Court in Garvin v. Garvin, supra, “the sale being for the benefit of the older judgment lien, the title under such is necessarily sustained by such older lien,” seems eminently applicable to the case. Besides, suppose the proceeds of the sale under which Hay claims had been sufficient to satisfy the judgment in favor of Creighton & Son, then there would be no senior judgment to which the proceeds of the foreclosure sale could be first applied, and the plaintiffs, as holders of the junior lien, would get rid of the senior lien and become first entitled to the proceeds of the foreclosure sale, although, in the case supposed as a test of the doctrine contended for, such senior lien had been extinguished by the money of the purchaser at the sheriff’s sale, who had a right to suppose that he was buying a title referable to such senior lien. It seems to me that to maintain such a doctrine as that contended for, it would be necessary to attribute a force and effect to a notice of lis pendeits which, so far as I can learn, has never been attributed to it before, and which is altogether unnecessary to its true purposes. The real object of such a notice is to prevent the necessity of constant amendments, bringing in purchasers from parties to a pending action as parties to such action; for, as said by Sir William Grant, master of the rolls, in The Bishop of Winchester v. Paine, 11 Ves., at page 196: “Otherwise suits would be indeter*311minable; or, which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined.” But it never was designed to operate as an injunction, or to stay the enforcement of process of the Court. This very case affords an illustration of the impropriety of giving to a notice of lis pendens the force and effect contended for. The conceded fact is, that the execution under which the land was sold was levied before the action was commenced, and, of course, before any notice of lis pendens was filed; and while counsel for appellants, in their argument here, repudiate the idea that such a notice operates as an injunction, yet it seems to me that the logical and necessary effect of the position for which they contend is to make such notice operate as an injunction restraining the disposition of such levy. For if no valid sale under such levy could be made, the practical effect would be to enjoin the disposition of such levy — not by the order of any court, but by the mere act of the parties. Surely this is not allowable. But, in addition to this, it seems to me that the case of Ex parte Mobley, 19 S. C., 337, recognized and applied in the recent case of Bank v. McMahon, 37 S. C., 309, is absolutely conclusive. In that case, as in this, very soon after the mortgaged premises had been levied on under execution, and before such levy could be disposed of by a sale, by reason of the time required by law for advertising such sale, the mortgagees commenced their action to foreclose, and at the same time filed notice of lis pendens, and the sale under which Mobley claimed was made on the first saleday after the íevy at which it could have been made. So that both in that case and in this the levy was made before, but the sale after, lis pendens was filed. The Court held, in Mobley’s case, that his title would relate back at least to the date of the levy, and hence he was a purchaser before notice of lis pendens. So here Hay’s title can relate back to the date of the levy, and hence he can be regarded as a purchaser before lis *312pendens filed; and, if so, then clearly the doctine contended for, even if otherwise maintainable, cannot apply.
I desire to avail myself of this occasion to remove what seems to be a misapprehension of the opinion of the Court in the case of Ex parte Mobley, above referred to. In that case the Court considered the position of Mobley in both aspects, first, as a purchaser after notice of lis pendens, and, second, as a purchaser before notice of lis pendens, the latter of which was his real position. Hence the language quoted by counsel from page 340 must be regarded as applying only to the hypothesis that Mobley was a purchaser after lis pendens filed., while that found on pages 341-2 applies to the other hypothesis, to wit: that he was really a purchaser before lis pendens filed. This is evident from the use of the word “again,” in opening the first paragraph on page 341. In other words, the Court, after holding that, under the circumstances of that case, Mobley was entitled to be made a party, even should he be regarded as a purchaser after notice of lis pendens, in order to enable him to litigate the question of fraud in the mortgages, which could not otherwise be done, proceeded to show that such was not his true position; for, under the authorities cited, Mobley’s purchase could have relation back to the levy, which was made before the commencement of the action, and, of course, before lis pendens filed, and, for that reason, he was clearly entitled to be made a party to the action.
It seems to me, therefore, that, in ■ any view of the case, the Circuit Judge was right in the conclusion which he reached, and his judgment should be affirmed.