
    9046
    
      EX PARTE OWENS. IN RE DARLINGTON ET AL. v. BUSH ET AL.
    
    (84 S. E. 875.)
    Landlord and Tenant. Rents. Jodicial Sales. Purchasers. Appeal and Error—Costs.
    1. Judicial Sales—Crops.—A purchaser at a judicial sale of lands acquires all rights of the parties to the action in and to the standing crops on the lands sold.
    2. Landlord and Tenant—Judicial Sales—Rents.—A purchaser of lands at a judicial sale acquires the rights to all rents maturing, and becoming due after the purchase.
    3. Costs.—Costs in equity cases are to be awarded in the discretion of the Court.
    4<. Appeal and Error.—Equity Cases.—A finding of facts by the master, concurred in by the Circuit Judge, will be affirmed, unless an error or abuse of discretion on part of the Circuit Judge is shown.
    Before Gage, J., Barnwell, December, 1913.
    Affirmed.
    Motion by L. V. Owens, a purchaser of lands at a judicial sale in an action brought by B. S. Darlington et al. v. W. W. Bush et al., for foeclosure of a mortgage. The facts are stated in the master’s report, as follows:
    
      To the Honorable Court of Common Pleas for Barnwell Count}'-:
    The above entitled proceedings, in the nature of an application for a writ of assistance, having been referred to me, as master, to ascertain as matter of law and fact what right, if any, Key and Salinas, or Mackay, or either of them, has to the crops or the proceeds thereof, I respectfully report:
    That I held a reference on the 17th inst., when I was atteniled by Mr. James E. Davis, attorney for the petitioner, and by Messrs. G. M. Greene and R. C. Holman and Mr. Darlington, attorneys for W. W. Bush and D. P. Key, and heard the matter upon the agreed statement of facts and records mentioned in the minutes of reference hereto attached.
    From the evidence and admissions I find as a matter of fact that an action was commenced in this Court by service of the summons and complaint on the defendants,” W. W. Bush and Dionicious Bush, to foreclose three mortgages given on the lands described in the petition by their ancestress, L. A. Bush, under whom the said W. W. Bush and Dionicious Bush claim title. The defendants in this action were said W. W. Bush, Dionicious Bush, who were the holders of the legal title to the land, and W. A. Holman and J. O. Patterson and Mrs. Darlington and Miss Stoney, who held mortgage liens thereon. The lis pendens in this action was filed in the office of the clerk of this Court on May 23, 1913. Judgment and decree for foreclosure and sale of the mortgaged premises, without any reservation of the growing crops thereon, was rendered at the July, 1913, term of this Court directing such sale by me, as master, on sales day in October, 1913, when such sale was made, at which the petitioner, Mrs. F. V. Owens, became the purchaser, complied with the terms of sale and received from said master a deed of conveyance of the said lands.
    On the 8th of February, 1913, said W. W. Bush leased, or rented, a portion of the said mortgaged lands, containing thirty-five acres, more or less, bounded on the north by the Barker estate, east by Mrs. Cuebine, south by J. O. Walker and west by the estate of W. H. Mears, for seventy-five dollars, to Tom Mackay, who gave the said Bush a rent lien thereon for that amount, which is in writing under seal, and was assigned to the Bank of Western Carolina on February 11, 1913, as collateral to some indebtedness, which was paid on October 17, 1913, so that bank is making no claim under said rent lien, which was returned by it to said W. W. Bush.
    The said Tom Mackay thereupon entered upon said thirty-five acres (a portion of the mortgaged premises) and planted them with the crops mentioned in the petition in these proceedings.
    On May 3, 1913, said Tom Mackay executed a mortgage of said crops and delivered same to D. P. Key to secure his note" for $118, due October 1, 1913, with interest after maturity at the rate of 8 per cent, per annum, which crop mortgage was filed and recorded in the office of the clerk of this Court on June 24, 1913.
    On May 9, 1913, said W. W. Bush executed and delivered a mortgage in writing on his crops then being grown on eighty acres, portion of the mortgaged premises remaining in his possession, to A. J. Salinas to secure certain advances and as additional security to his note for one hundred and sixty-eight dollars and fifty cents, dated on May 9, 1913. and due October 15, 1913, which mortgage was recorded in the office of the clerk of this Court on Majr 14, 1913, and there said mortgage was assigned by said Salinas to said D. P. Key in consideration of five dollars.
    1 I conclude as matter of law that section 3633 of the Civil Code, cited by counsel for the purchaser at the foreclosure sale, has no application to the facts of this case; but whatever rights the defendant, Bush, had to the crops growing upon the mortgaged lands during the year 1913 passed to Mrs. Owens, as purchaser at the master’s sale, inasmuch as said defendants were parties to . the action and such crops were not reserved m the order for sale. Hancock v. Caskey, 8 S. C. 282, 286. The defendants, Bush, have no rights in said crops as against the petitioner, Mrs. Owens, who is entitled to a writ of assistance to compel them to turn over and deliver said crops in their possession to her.
    I further conclude as matter of law that Tom Mackay having been in possession of the thirty-five acres, more or less, above mentioned as a tenant, under a written lease, dated the 8th of February, 1913, for a period not longer than twelve months (Code of Laws 1912, vol. I, sec.. 3542) at the time action was commenced by service of the summons and complaint upon Bush, his landlord, was a proper party to said action, and not having been made a party thereto his interest, and the interest of D. P. Key, mortgagee claiming under Mackay, although the mortgage was not recorded until June 24, 1913, after the commencement of the action, in the crops grown by him upon said thirty-five acres of land was not affected by the decree and sale in foreclosure, and that said Mackay and Key have a right to hold said crops as against the petitioner..,.Mps. Owens, who purchased at said sale, and is not now entitled to a writ of assistance to take said crops from Mackay and his mortgagee. Bx parte Jenkins, 48 S. C. 335, 336, 26 S. E. 686; Title v. Kennedy, 71 S. C. 9, 50 S. E. 544. But the rights of Mackav and Key to these crops is subject to the lien of the prior mortgages on said lands at the timeTfiTCt. Mackay leased them, in January, 1913, and such .lien.' if - necessary to the payment of the mnrtp-age debt, may yet be enforced by proper proceedings against said crops in the hands.of Mackav or Kev. T3ut mese mortgages have'been paid. In the same way the rights of Mackay to the possession of said thirty-five acres of land under his lease for the year 1913 not having been foreclosed in said foreclosure proceedings, he is entitled to withhold possession of said thirty-five acres until either the expiration of his lease, December 31, next, or its termination for nonpayment of rent (secured by the lien given to W. W. Bush), or the foreclosure of the prior mortgage liens as against him.
    2 “““ I further conclude that when Mrs. Owens, the petitioner, purchased the interest of the defendants, Bush, in said lands, she acquired all their interest therein, including their interest in the rents for the land which were to become due after the date of her purchase— sales day in October, 1913.
    _,It will be observed, as suggested by Judge Richardson in Snyder v. Riley, 28 S. C. D. (1 Speer’s Law), star page 273, that the whole year’s rent under the lease from Bush to Mackay did not become due until October 15, 1913, after the master’s sale to Mrs. Owens; and I conclude that she is entitled as assignee of the rights of W. W. Bush in said lands, to enforce the lien which he held to secure the payment of the seventy-five dollars rent by Tom Mackay on and after October 15, 1913, and still has a right to do. This rent should be paid by Mackay, or those claiming under him, to Mrs. Owens, and not to Bush.
    I further conclude as matter of law that A. J. Salinas, ■ as mortgagee of the crops raised on the eighty acres above mentioned, cultivated by Bush, took his mortgage lien on said crop subject to the prior liens of the mortgages on lands foreclosed in the above mentioned action, and was a proper party to that action; .but as he was not made a party to said action, and D. P. Key, his assignee of his rights under that mortgage, was not made such party, said assignee is not affected by said decree and sale in foreclosure; and said Key, as such assignee of Salinas, is entitled to enforce his mortgage lien upon the crops made on said eighty acres of land; and the petitioner, Mrs. Owens, is not entitled to a writ of assistance as against him; but his interest as mortgagee in said crops may be subjected to the lien of the superior mortgages on the lands by proper proceedings, if necessary, to secure the payment of the mortgage debt. The superior mortgages on these lands have been paid. That Mackay and his mortgage, and Key, .assignee, have reasonable time in which to gather the crops.
    That respondents pay these costs.
    The exceptions were as follows :
    1. That it was error to hold that Thomas Mackay should have paid the year’s rent to the petitioner, because on the face of the rent lien it became due and payable after she purchased the land; whereas, he should have held that neither the pleadings nor the order of referenceA<S5wtereá”_ that issue for his decision.
    2. That it was error to hold that the rtínt lien of Thomas Mackay, which he was to pay to W. Wi Bush for part of the land in question for the year 19b#T went with the lands to the purchaser at foreclosure ■ gale; whereas, he should have held that the rent lien being in writing and having been duly assigned to the Baiyk of Western Carolina, who held it at 'the time of the salfe of said lands as collateral security for a loan to W. W. Bush, and the bank not having: been made a party to the foreclosure proceeding, it was not bound thereby, and the taking of said rent from the bank would be taking the property of the bank without due process of law.
    3. That the bank held the said rent lien as a first lien upon the crop of Thomas Mackay and had a right to collect the same, independent of the purchaser at the foreclosure sale, and Thomas Mackay had a right, and it was his duty to pay, as he did pay, his rent to the legal owner and holder of said rent lien, and was thereby discharged from paying the rent to an}*- other person.
    4. That it was error for his Honor to have held the purchaser could take more of the rent of the said lands for the 3),ear 1913 than a pro rata share—that is to say, a proportion of the seventy-five dollars equal to that which would be earned for the use of the land from sales day in October until the end of the year.
    5. That it was error for the master to recommend that these respondents pay the costs.
    
      Messrs. G. M. Greene and R. C. Holman, for appellants,
    cite: 42 S.' C. 398.
    
      Mr. James R. Dams, for respondent.
    March 31, 1915.
   "T-he..opinion was delivered by

Mr. Justice Watts.

This is an lineal from an order of Hon. Geo. W. Gage, Circuit Judge, corfifirming and approving the report of IT. L. O’Bannon, Esq., master. The report of master fully sets out the facts of the cashv^and will be reported. From the order of his Honor, Judge' Gage, D. P. Key and Thomas Mackay appeal, and allege error in holding that Thomas Mackay should have ph.id the rear’s rent to the petitioner; and in holding that the rent lien of Thomas Mackay, which he was to pay W. W. Bush for part of the land for the year 1913, went to Jhe purchaser at the sale under foreclosure; and in not finding and holding that the bank had first lien on crop of Thorkjas Macka}^ and had the right to collect the same; and that Thomas Mackay in paying the same as he did to the true lawful owner and holder of rent lien was discharged from paying the rent to any other person; and in holding that the purchaser got the whole rent for the year 1913; whereas, it should have been prorated and the purchaser should only have been decreed the proportion of the $75.00 equal to that which would be earned for the use of land from date of purchase in October until the end of the year; and allege it was error to require the respondents to pay the costs as recommended by the master.

We have a finding by-the master concurred inmy the ciicuit Judge, and we fail to find any errors or abuse of discretion on the part of his Honor as complained of by the appellants, and all exceptions are overruled, and judgment affirmed.

Mr. Justice Gage, having heard this case on Circuit, took no part in the decision on appeal. 
      Footnote.—As to right of purchaser at judicial sale with respects to rents, see note in A. & E. Ann. Cas. 1912b, 398.
     