45 S.C. 69 | S.C. | 1895
The opinion of the Court was delivered by
The only question presented by this appeal is whether the mortgage sought to be foreclosed in this action was duly recorded so as to affect the defendant, a subsequent purchaser of the mortgaged premises, with constructive notice of said mortgage.
In the complaint it is alleged, “that said mortgage was duly proved and, on the 13th day of February, A. D. 1872, recorded in the clerk’s office for Kershaw County, in the mortgage book No. 2, pages 356 and 357.” To this allegation the defendant, in his answer, responded as follows: “This defendant avers that he was a purchaser of a part of the said tract of land for a valuable consideration, without legal notice of any prior encumbrance on the same, the proper index in the office of the register of mesne conveyance for Kershaw County relating to real estate not showing that any mortgage .on said tract of land had been recorded in the proper books of said office. This defendant, therefore, denies that the mortgage set forth in the complaint was properly or duly recorded in the office of the clerk for Kershaw County, and that he had legal notice of the same.” The case was referred to the master, who made his report, sustaining the validity of the mortgage, and recommending that the mortgaged premises be sold and the proceeds applied to the payment of the mortgage debt, the amount of which was ascertained in his report. To this report the defendant excepted, upon the grounds set out in the “Case,” and the case was heard by his Honor, Judge Benet, upon the report and exceptions thereto, who rendered judgment, overruling the master and dismissing the complaint.
While, as we have said, this disposes of the only issue, so far as the present appeal is concerned, which is raised by the pleadings, yet as other objections were made to the record of the mortgage, which, though overruled by the master, were sustained by the Circuit Judge, we will proceed to consider them.
We are of the opinion, therefore, that the judgment of the Circuit Court should be reversed; but, as there is one issue raised by the pleadings' — that of payment of the mortgage debt — which was not determined by the Circuit Judge, as, under the view which he took of the case, it was not necessary for him to do, the case must go back to the Circuit Court for the determination of that issue, and for such further proceedings as may be necessary, under the views herein announced, in case the issue of payment should be determined adversely to the defendant.