Opinion
13296
December 21, 1931.
Before FEATHERSTONE, J., Newberry, April, 1930. Modified and remanded.
Action by the National Bank of Newberry against Mills M. Livingston, The First Carolinas Joint Stock Land Bank of Columbia, S.C. and others. From the decree, plaintiff and the last-named defendant appeal.
The decree of Judge Featherstone directed to be reported, follows:
The plaintiff, and the defendant Joint Stock Land Bank, make motions in this case, first for the appointment of a receiver and, second, for an order to conform the judgment of the Circuit Court to that of Supreme Court.
The defendant J.P. Icard makes a motion for an extension of time in which to cut the timber on the three tracts of land, although the time has expired by the terms of his deed, on the ground that he has been deprived of the right to do so by the acts of the adverse parties and by the delay of the Court.
Fortunately it will not be necessary to state the facts at any length, for they are nearly all contained in the record of this case on the Circuit or in the Supreme Court.
On the 6th of March, 1925, the defendant M.M. Livingston, by deed, granted certain timber rights to Icard, giving him five years in which to cut and remove the timber on three tracts of land, one of which was the Cooley tract.
The deed was not recorded until September 18, 1926, practically eighteen months after its execution.
After the execution of the deed, but before its recording, M.M. Livingston executed mortgages to the plaintiff and defendant Joint Stock Land Bank.
Before the execution of the mortgages, but after the execution of the timber deed, M.M. Livingston executed to Mrs. Lenora C. Wheeler a mortgage on the Cooley tract, which was duly recorded, and in which, as a part of the description, was the statement, "Being the same land on which I recently sold to J.P. Icard the standing timber, and this mortgage is junior to said timber deed."
The plaintiff brought this action to foreclose its mortgages on the three tracts, including the Cooley place, Icard and Land Bank being made parties.
Icard set up his rights to the timber on all three tracts, alleging that the mortgagees had notice thereof by reason of the recital in the Wheeler mortgage.
The action was commenced the 18th day of January, 1928.
The Circuit Court held that Land Bank had actual notice and that Icard was entitled to priority over it as to the timber on all the lands, but that plaintiff had no actual notice, and the recital did not charge it with constructive notice.
The Circuit decree was signed January 18, 1929, just exactly one year from the time of the commencement of the action.
The Circuit decree provided for a sale of the three tracts of land and the timber thereon, separately, on sales-day in March, 1929, and, further, that the proceeds of the sale of timber should first be applied to plaintiff's mortgage debt, and balance, if any, to Icard.
The Circuit decree further provided that the purchaser of the timber have until March 6, 1930, in which to cut and remove it, that being the date of the expiration of the five-year period, as fixed by the timber deed.
The case went to Supreme Court, both Icard and Land Bank appealing.
Exactly when it got to Supreme Court does not appear, but it was decided by that Court March 13, 1930, seven days after the time for removing the timber expired. 155 S.C. 264, 152 S.E., 410, 415.
The Supreme Court sustained Icard's appeal, holding that plaintiff had constructive notice from the recital in the Wheeler mortgage, and affirmed the Circuit decree in all other respects.
In some way, Mr. Justice Cothran, who is usually very accurate and clear in his statements, says in the opinion. "He [referring to Icard], therefore claims that his deed has priority over the mortgages, so far as the timber on the Cooley [italics added], place is concerned."
And again, in speaking of what the Circuit Judge held, he says: "Holding that Icard was entitled to priority over the land bank mortgage, as to the timber on the Cooley place."
The judgment of the Supreme Court was "that the decree of the Circuit Court be modified as herein indicated, and that the case be remanded to that Court for such further orders as may be consistent with the conclusions announced."
And now for a discussion of the questions involved in the motions.
The motion for the appointment of a receiver was not contested, and I have signed a separate order as to that.
As to the motion of the mortgagees to make the judgment of this Court conform to that of the Supreme Court: The mortgagees are contending that the Circuit Court decree was modified only in so far as the timber rights of the Cooley place are concerned. Icard is contending to the contrary. This question, I think, will have to be answered in accordance with the contention of Icard.
The erroneous statements as to what Icard was contending for, and as to what the Circuit Judge held, relates to immaterial matters and should not control what was evidently intended by the whole opinion.
The learned Justice was fully cognizant of the well-established rule in equity, that notice sufficient to put one upon inquiry gives notice of all that would be revealed by a diligent following up of that inquiry; in fact, he actually quotes the authority to that effect.
Clearly a following up of the trial, starting with the recital, would have revealed the deed which granted the timber rights, not simply on the Cooley, but on all three tracts of land.
Besides, the record shows that Icard was claiming the timber on all the tracts, that the Circuit decree had deprived him thereof, and his appeal involved the timber on all three tracts. And the deed was printed in full in the record before the Supreme Court, and the dissenting opinion calls attention to the error of Mr. Justice Cothran in his statement of facts in respect to Icard's claiming timber on the Cooley place only.
To hold with the contention of the mortgages would be drawing it too fine, in fact, would be splitting hairs.
An order will have to be passed conforming the judgment of the Circuit Court to that of Supreme Court, but in accordance with the views above expressed.
The decision of the Supreme Court gave Icard priority over the plaintiff as to timber on all the lands, and the leading opinion so held, when at the end it says, "We think therefore that the decree of his Honor, the Circuit Judge, is erroneous in holding that the Newberry bank is not chargeable with knowledge of the Icard Timber deed." (Italics supplied.) And it is so ordered, adjudged and decreed.
The next question, whether or not Icard shall have a reasonable length of time to gather the fruits of his victory, after the time fixed in the deed has expired, is not altogether easy of solution.
To solve it, we must bear in mind:
I. That Icard had full five years in which to cut and remove the timber. He had no more, no less.
II. The time has expired. It expired while the case was pending in the Supreme Court.
III. As shown by the record, he made two motions while the case was pending in that Court: First, to advance the time of argument; second, again to advance the argument, and, failing in that, to be allowed to cut and remove the timber upon the giving of bond.
The first motion was refused. The second time he got the time of argument advanced, but was refused relief as to cutting of the timber.
IV. That at the time the action was commenced to foreclose, in which his rights were contested, to wit, January 18, 1928, he had more than two years in which to cut the timber.
V. That at the time of the filing of the Circuit decree, January 18, 1929, he had about fourteen months left.
VI. That at the time Supreme Court decided the case he had no time left, but was behind seven days.
VII. That his right commenced March 6, 1925. He could have cut and hauled before the action was commenced, but was not bound to do so. He had the full five years, and Supreme Court has held that plaintiff had notice of his contract, and the Circuit Court held that Land Bank knew of his rights, and Supreme Court affirmed that holding.
What ought a Court of equity to do in these circumstances?
As shown by my first decree, I was against Icard; I did not think that he was entitled to much consideration. He failed to record his deed, as he ought to have done, and I held that plaintiff was without notice, and Icard must bear the consequences of his own wrong.
But the Supreme Court did not agree with me. It held that Icard could sit back, not open his mouth, and reap the advantage from what M.M. Livingston said in his mortgage to Mrs. Wheeler.
What the Supreme Court decided is the law of this case. By it I am bound, and I yield most gracefully.
With the Supreme Court having held that both the mortgagees had notice of Icard's rights; with the fact staring us in the face that Icard had full five years in which to cut and remove the timber; with the further fact before us that Icard's hands were tied for more than two years by litigation, I repeat, what ought a Court of equity do?
It seems to me there can be but one answer. He ought to be allowed a reasonable time in which to cut and remove the timber.
Courts of equity have answered this question time and again.
The able and zealous attorney for Icard has supplied the Court with scores of cases, sustaining this view. Halla v. Rogers (C.C.A.), 176 F., 709, 34 L.R.A. (N.S.), 120; 38 C.J., 174, Paragraph 55; 17 R.C.L., 1090, Paragraph 17; Colvin v. Clark, 101 Wn., 100, 172 P., 214, 216; Wright v. Cline, 172 Ky., 514, 189 S.W. 425; Cooksey v. Hartzell, 120 Ark. 313, 179 S.W. 506; Kimsey v. Posey, 148 Ky., 54, 145 S.W. 1121; Roberson v. Little, 200 Ala., 582, 76 So., 940; Sanders v. Clark, 22 Iowa, 275; Maynard v. Farley, 198 Ky., 420, 248 S.W. 1022; Broom's Legal Maxims (8th Ed.), 281; United States v. W.T. Mason Lumber Co. (C.C.). 172 F., 714.
For a full annotation of this question see 34 L.R.A. (N.S.), 120, 47 L.R.A. (N.S.), 885, 15 A.L.R., 93, 31 A.L.R., 951.
The case of Halla v. Rogers, supra, which pertained to a mining lease but involved the same question, holds, as set out in the syllabus, as follows: "The owner of a mine who, after leasing it for a certain time with the right to take the minerals therefrom, wrongfully prevents the lessee from exercising his right under the lease until the expiration of the term, may be compelled by a Court of equity to afford the lessee a reasonable time after the expiration of the stipulated period in which to secure the benefit of his contract."
In the case of Colvin v. Clark, supra, which is in a great many respects similar to this case, in that it was a sale of timber with five years to remove and after grantee had cut a considerable quantity of the timber an action was brought by the grantor for cancellation of the timber contract. The lower Court found in favor of the grantor, and ordered the contract canceled. On appeal to the Supreme Court, the lower Court was reversed, and the Court holds: "It is clear that the appellant could take this timber from the land at any time within the five years, because no other time was specified. * * * It appears now that the five-year period has elapsed; but after the judgment was entered in this action the contract was canceled by the lower Court, and it is plain that after that time the appellant was bound by that judgment until it was reversed, and he had no right to go upon the land to take more timber therefrom. In view of this fact, and, in view of the fact that the judgment of the trial Court must be reversed for the reasons above stated, it is but just that the appellant should have an extension of time in which to fully perform his contract, which would be the difference between the date of the judgment in this case and the date of the expiration of the contract."
The case of Cooksey v. Hartzell, supra, is also very similar to this case, in that the grantor after selling timber and giving two years in which to cut and remove, which timber deed was not recorded until several months later, sold the land to Hartzell and conveyed to Hartzell before the timber deed was recorded. In an action by Cooksey, the grantee of the timber, against Hartzell, to enjoin him from interfering with the removal of the timber, Hartzell claimed that he had no notice of the timber deed. The lower Court sustained Hartzell's contention, and on appeal the Supreme Court reversed the lower Court and held that Hartzell did have notice; but in the meantime and during the litigation the time for cutting expired and the Court held that the time did not run against appellant's rights until interference was removed, and granted an extension of time equal to the time he was prevented on account of the judgment of the lower Court.
In the case of Roberson v. Little, supra, Roberson sold timber to Little, and gave ten years in which to cut. After cutting part of the timber, Little moved his mills off of the land and ceased cutting for a number of years, and, shortly before the expiration of the time, attempted to finish the cutting but was prevented by Roberson with lawsuits, threats, and divers interferences. The Court held: "In our judgment it [meaning evidence] satisfactorily establishes the fact that appellant by lawsuits, threats, and divers interferences, did prevent appellee from cutting and removing the trees and timber within the time limited in the deed whereby the right to cut and remove was vested in him, and that thus appellee's case is brought within the rule which appears to be uniformly recognized by the Courts to this effect: That where the vendee's failure to remove timber during the time stipulated in his deed has been due to interference by the owner of the soil, his right to a reasonable time thereafter in which to remove will be declared and enforced by appropriate decree in equity. Halla v. Rogers, 176 F., 709, 100 C.C.A., 263, 34 L.R.A. (N.S.), 120."
I will not incumber this decree with further quotations from the authorities cited, but will content myself with stating a few general principles, and answering some of the objections urged to the contrary.
I. Equity does not favor forfeitures, and will seize upon even trival circumstances to prevent them.
II. If one grants to another certain rights and fixes a certain time in which these rights must be exercised, and the grantor by some act of his prevents the exercise; or if by act of God, or by reason of some cause over which he has no control, he is prevented from exercising the rights, equity will intervene for his protection.
We may admit that the act of the Courts cannot be classed as an act of God; yet the fact remains that, in so far as Icard is concerned, it operated with practically the same force.
His hands were tied by the pending litigation, in which he was eventually successful.
Was he prevented by any act of the grantor, Livingston? Directly, no; but indirectly, yes.
The mortgagees derived their rights from Livingston. Through Livingston they acquired their rights to go into Court and foreclose.
It is argued by counsel for the mortgagees that, under the grant, Icard's rights ceased on the 6th of March, 1930, at which moment, by operation of law, the title to the timber reverted in Livingston, and that the time cannot be extended unless some act of Livingston prevented the removal of the timber.
That such argument is technically sound is beyond dispute, but it fails to take into account the doctrine that causes, other than the acts of the grantor, will entitle the grantee to relief.
I do not think a Court of equity ought to construe that doctrine so narrowly as to make it mean the direct act of Livingston.
When the title revested, it did so subject to the rights of the mortgagees, and the acts of the mortgagees must be regarded as those of Livingston.
It is clear that when the mortgagees acquired their liens, with notice of Icard's rights, they did not get liens on the timber, for the title had passed out of Livingston.
It is equally clear that when the title revested in Livingston, by reason of the expiration of the time fixed in the deed, the liens of the mortgagees attached to the after-acquired property.
This being true, when it appears that the mortgagees in the foreclosure proceedings had Icard in Court tied hand and foot, so that he could not take advantage of his rights, it would manifestly not be equitable to allow them to reap an advantage brought about by their acts.
The maxim "He who prevents a thing being done cannot avail himself of the non-performance he has occasioned" becomes applicable.
Again it may be contended that Icard ought to have appealed from the Circuit decree fixing the limit as of the date of the contract; or that he ought to have asked the Circuit Court at that time for an extension.
At first blush I thought there was some force in that contention, but, upon reflection, I have changed my mind.
The Circuit decree was signed in January, 1929. If there had been no appeal, Icard would have had no interest in the timber, for it would have been absorbed by plaintiff; again, Icard then had fourteen months left. It could not then have been foreseen that a final decision would not be had until March, 1930. He did appeal from the ruling that was in his way, and had it removed.
We must also bear in mind that he began knocking for relief as early as March, 1929, requesting the attorneys for plaintiff to agree to a sale in April, and that the proceeds be deposited and held to abide the result of the appeal. This request was refused.
He next made a motion before the Supreme Court, April 8, 1929, to have the case advanced and heard in May, which was refused.
On April 9, 1929, he again notified attorneys that he would be forced to commence the cutting of the timber or else lose his rights, unless they would agree to sell the timber in May and deposit the proceeds. Again he met with refusal.
Again, on May 13, 1929, he made another motion before the Supreme Court for leave to cut the timber upon giving bond, which was refused. The Court, however, did then advance the case for argument in June.
The case was then argued with four Justices sitting; Mr. Justice Blease being disqualified. The Court being equally divided, Mr. Justice Graydon was called in, whereupon Mr. Justice Carter found that he was disqualified, and later Mr. Justice Smith took his place. And finally, on March 13, 1930, came the decision, three to two.
It will be understood, of course, that no reflection is intended and no criticism made of the Court by reason of the delay. It seems to have been necessary.
The history of the case is given in the moving papers, and is inserted here for the purpose of showing that Icard did not sleep upon his rights once he got into Court, where he was forced to come.
It seems to me that after he got into Court he did all that mortal man could do for the protection of his rights.
Again, attention is called to the fact that the Supreme Court refused Icard relief, stating in its order, in substance, that Icard would lose all benefit of his appeal if it took the regular course, "his alleged rights under the contract expiring before the appeal could possibly be heard and decided."
I do not think the mortgagees can make capital out of that statement.
The matter of extension of time was not before that Court; Icard was asking that he be allowed to cut the timber, which, I think the Supreme Court might well have refused for lack of jurisdiction. Such question had not been passed upon by the Circuit Court, and that Court had adopted as its method a sale of the timber. Besides the Supreme Court had not then decided in Icard's favor. If he had lost he would have had to ask no relief. When the Court as stated in the order, suggested that his rights might be lost, and referred to the contract, it could not possibly have meant to decide the question now before the Circuit Court.
Icard was at fault, as I thought, in failing to record his deed. I did not think that the recital in the Wheeler mortgage was notice to the bank. The Supreme Court thought otherwise, and the views of that Court are now the law of this case.
Beyond all question, the acts of the mortgagees brought Icard into Court and tied his hands from January 10, 1928, until March 13, 1930, a period of two years and two months, as effectually as an injunction would have done. Ought Icard to suffer in consequence? I do not think so. I think he is entitled to relief. How? How much time should he be given? I answer, a reasonable time. And there is no testimony before me upon that question, nor did counsel in argument discuss it. I gathered from the remarks of counsel made in a friendly way, and not by way of threat to the Court, of course, that there will be another appeal in this case. Therefore I do not think it wise to undertake to say, at this time, what would be a reasonable time for the removal of the timber.
In my former decree I ordered the timber sold, but owing to the subsequent change in the situation, brought about by the modification of my decree, I am not prepared to say whether the timber ought to be sold, or Icard allowed a reasonable time to cut and remove it.
Therefore I am going to leave these questions open for the future adjudication, so that testimony can be taken by reference or otherwise, and counsel heard thereon.
As before stated, a receiver has been appointed, and there will be no sale until fall, so that no injury can result from this delay.
I throw out, by way of suggestion only, that in the event of another appeal, it might be wise to authorize the receiver to sell and dispose of the timber and deposit the fund to abide the result.
At the hearing, it was found that defendant Livingston had not been served with notice of this motion, and since that time he has been served and is now before the Court.
It is ordered, adjudged, and decreed that the defendant J.P. Icard is entitled to have a reasonable length of time, from the ending of this litigation, in which to cut and remove the timber on all three of the tracts of land, or that the purchaser at the sale have such time.
It is further ordered that testimony be taken by reference or otherwise, as may be determined later, what would be a reasonable time.
It is further ordered that any of the parties have leave to apply at the foot of this decree, upon due notice for such further orders as may be necessary.
Messrs. Thomas Lumpkin, for the First Carolinas Joint Stock Land Bank, and Messrs. Dominick Workman, for National Bank of Newberry, S.C. appellants, cite: Timber grant is a fee defeasible: 90 S.C. 176; 131 S.C. 32; 127 S.E., 267. Threat of condemnation proceedings for cutting did not extend time fixed by deed: 100 N.W., 834; 94 A., 837. Court cannot extend time which has already expired: 20 L.R.A. (N.S.), 547. Record of mortgage gives no notice of terms of bond not incorporated therein: 72 S.C. 404; 52 S.C. 48; 110 A.S.R., 615; 43 S.C. 72; 20 S.E., 807; 76 S.C. 481.
Mr. J.B. Hunter, for J.P. Icard, respondent, cites: Equity Court will grant relief from forfeitures: 103 S.C. 248; 88 S.E., 8; 147 S.C. 333; 145 S.E., 209; 38 C.J., 174; 17 R.C.L., 1090; 109 S.E., 323; 176 Fed., 709; 172 Pac., 214. Time may be extended for good cause: 189 S.W., 425; 179 S.W. 506; 145 S.W. 1121; 76 So., 940; 22 Iowa, 275; 248 S.W. 1022; 172 Fed., 714; 34 L.R.A. (N.S.), 120; 31 A.L.R., 951. Law of the case: 2 R.C. L., 223; 4 C.J., 1213; 43 S.C. 884; 65 S.E., 410; 78 S.C. 105; 58 S.E., 955; 92 S.C. 354; 75 S.E., 542; 100 S.C. 483; 25 S.E., 433; 84 S.C. 193; 65 S.E., 1050; 145 S.C. 161; 143 S.E., 13; 65 S.C. 400.
December 21, 1931. The opinion of the Court was delivered by
This is the second appeal in this case. The facts necessary to an understanding of the issues raised by the present appeal are fully stated in the Circuit decree, which should be reported. Two main questions are presented by the exceptions, upon the determination of which the issues raised by the appeal depend.
First: Did this Court in its former opinion, 155 S.C. 264, 152 S.E., 410, hold, and did it intend to hold, that the National Bank of Newberry, at the time of the execution and delivery of the Livingston mortgage to it, had actual and constructive notice of the recital contained in the recorded Wheeler mortgage with reference to Icard's timber rights as to put the said bank on notice, not only as to such timber rights on the Cooley tract of land as referred to and mentioned in the Wheeler mortgage, but also as to his timber rights in the other two tracts of land set forth in the unrecorded deed, but as to which no mention or recital was made in the Wheeler mortgage?
Second: Is Icard entitled in equity under the facts in this case to have the contract time for cutting and removing timber on any such tract of land, wherein his timber rights may be protected by the notice afforded by the said recital contained in the Wheeler mortgage, extended for a reasonable time?
As to the first question, it was clearly determined in the first appeal that the National Bank of Newberry had constructive notice of the recital contained in the recorded Wheeler mortgage with reference to the unrecorded Icard timber deed. This matter cannot therefore again be put in issue. The adjudication of the Court on the former appeal is binding on the Court on any successive appeal. It is well settled by numerous authorities that the judgment of the Supreme Court announced in any case on any former appeal is res adjudicata and must be followed throughout the trial of the case until it is finally disposed of. Forrest v. McBee, 78 S.C. 105, 58 S.E., 955; and this is true, even though the decision of the Court on a former appeal is based on a misconception of facts. Carpenter v. Lewis, 65 S.C. 400, 43 S.E., 881. In the recent case of Jenkins v. Southern Railway Co. et al., 145 S.C. 161, 143 S.E., 13, 14, it is stated that "The decision of the Court upon the appeal referred to is not only res adjudicata as between the parties, but is the `law of the case,' right or wrong."
In the present appeal, the National Bank of Newberry contends that the constructive notice afforded by the recital contained in the recorded Wheeler mortgage extended only to Icard's timber rights on the Cooley tract of land mentioned in the recital contained in the said Wheeler mortgage, and further contends that this was the actual determination of the Court on the first appeal in this case. Icard contends, however, that such notice extends not only to the timber rights on the Cooley tract mentioned in the recital, but also to timber rights on two other tracts of land included in Icard's unrecorded deed, but as to which no reference was made in the recital contained in the said Wheeler mortgage; and Icard now contends that such was the holding on the former appeal. We are therefore only called upon to determine as to this issue the actual adjudication of the Court on the former appeal.
Undoubtedly the timber on the Cooley place was the only tract of timber actually considered in the first appeal as being affected by notice arising out of the recital in the Wheeler mortgage. The recital contained in the Wheeler mortgage, relied upon as being the medium of constructive notice to the National Bank of Newberry, is as follows: "Same being the identical tract of land * * * on which I recently sold to J.P. Icard the standing timber, and this mortgage is junior to said timber deed." This recital follows the description of the Cooley tract of land contained in the said mortgage, and it is the only mention contained in the said mortgage of the unrecorded Icard timber deed. This recital was the only basis on which constructive notice could be predicated so far as the National Bank of Newberry is concerned, and is the only basis on which it was predicated in the former opinion. In different phraseology, it is stated on more than one occasion in the main opinion of the first appeal that the issue between Icard and the National Bank of Newberry, as to notice, was as to the timber on the Cooley place; and it further appears in the opinion that this was based solely on the said recital contained in the Wheeler mortgage. There was nothing else of substantial nature as to notice contained in the entire record so far as the National Bank of Newberry was concerned.
As to the recital, it may be remarked that it is full and complete in its terms. It does not invite further inquiry. It rather precludes the necessity of further investigation. The sense of it is that the timber on the Cooley place had been conveyed to Icard, and that this was the entire conveyance of timber rights. No suggestion is made of the conveyance of timber on any other lands. Under such circumstances, it would be an extreme application of the doctrine of notice to allow it in equity to be the medium on which notice is based as to timber rights on any other tract of land included in the unrecorded deed, but as to which nothing appears of record. Such was not the intention of the Court on the former appeal. On the contrary, the holding as to notice was limited to the timber rights on the Cooley place. The Circuit decree, in so far as it holds that Icard is entitled to priority over the National Bank of Newberry on the timber rights on the other two tracts of land covered by the unrecorded timber deed other than the timber on the Cooley place, must therefore be reversed.
As to the second question, is Icard now entitled in equity to have the contract time for cutting and removing the timber off the said Cooley tract of land, which is protected by the notice afforded by the recital contained in the Wheeler mortgage, extended for a reasonable time under the facts stated in the Circuit decree, and which are practically admitted to be true? The record shows that the Circuit decree in the first appeal in this case was signed January 8, 1929, and that the Supreme Court's opinion on such appeal was rendered on March 13, 1930, seven days after the expiration of the rights of Icard under his timber deed.
It further appears that between the date of the signing of the Circuit decree and of the rendering of the opinion of the Supreme Court on the former appeal from such decree, Icard attempted to protect his rights under the timber deed by various means, and in the various ways set forth in the Circuit decree reported herein. He was defeated in these efforts to obtain such protection of his rights, largely by the action and position taken by the Joint Stock Land Bank and the National Bank of Newberry. It was determined on the former appeal that the Joint Stock Land Bank knew of his timber rights in all of the three tracts of land covered by his unrecorded timber deed, and that the National Bank of Newberry had constructive notice of such timber rights so far as the Cooley place is concerned and that each of the said banks had such notice at the time when the respective mortgages given each of them by Livingston were executed and recorded. Under such circumstances, it cannot be doubted that Icard is entitled to such extension of time in equity to cut and remove the timber off the Cooley tract of land, as he has lost by reason of being prevented from the exercise of such rights by the action of the two banks. Under these circumstances, such reasonable time would be the difference in time existent between the filing of the Circuit decree on January 8, 1929, and the date of the expiration of his rights under the timber deed, to wit, March 6, 1930. To refuse to allow the defendant Icard this equity would in fact be to allow the Joint Stock Land Bank and the National Bank of Newberry to benefit by their own wrong in depriving him of the exercise of his rights under the unrecorded deed in so far as the Cooley place is concerned, and as to which it has been determined that he has priority over both banks by reason of the notice afforded by the recital contained in the Wheeler mortgage.
For the reasons stated herein, and in the Circuit decree reported herein, the judgment of the lower Court must be modified. As stated, however, reasonable time to cut and remove the timber should be determined under the facts of this case by reference to the time lost by Icard on account of the preventions suffered by him by reason of the action and position taken by the two banks, which prevented him from the exercise of his timber rights over the Cooley place.
The Circuit decree is therefore modified as herein indicated, and the case is remanded to the Circuit Court for such further orders as may be consistent with the conclusions herein announced.
MESSRS. JUSTICES COTHRAN, STABLER, and BONHAM and MR. ACTING ASSOCIATE JUSTICE COSGROVE concur.
Being bound by the decision of this Court upon the former appeal herein, and for that reason alone, I concur in the conclusions announced by Mr. Acting Associate Justice Barron.