41 S.C. 201 | S.C. | 1894
The opinion of the court was delivered by
. On the 1st day of December, 1887, the appellant executed a mortgage on certain real estate to one J. W. Dacus, which was afterwards duly assigned to the plaintiff, Mamie B. Dacus. The real estate mortgaged was described in the mortgage as follows: “All those two tracts or parcels of land owned by me, situated and lying and being in Greenville County, State aforesaid, on waters of Saluda River; one piece or parcel or tract being the place whereon I reside, and containing sixty-five and one-half acres, more or less, and the other piece, parcel, and tract being the place bought from Ailsey Cothrau, containing forty-one acres, more or less; both tracts aggregating 1061 acres, bounded by lands of Westley and Jas. Holliday, T. H. and Charles Stokes, and others.” Subsequently, to wit: on the 5th of February, 1892, an action was brought to foreclose the mortgage, and in the complaint the mortgaged premises were described just as they were in the mortgage, as above set forth.
Judgment was obtained, and in July, 1892, “the lands de
From this judgment the defendant, James Smith, appeals upon the following grounds: 1. Because of error in finding as matter of fact that the sixty-five and a half acre tract and the three and a quarter acre tract have been treated by defendant as one entire tract. 2. In finding “the residence tract is included in the description contained in the mortgage, being the tract on which I reside, and is a part of the tract so described.” 3. In holding that the return of the defendant was insufficient. 4. In ordering the sheriff to eject the defendant from the three and a quarter acre tract and put the purchaser in possession of same. 5. In not framing an issue to be tried by a jury in the said proceeding to determine the facts raised by the return. 6. In not holding that the return raised a question of title to real estate, which question could not be tried in that proceeding.
It seems to us, also, that the rights of the petitioner, as purchaser of the mortgaged premises at the sale under the judgment of foreclosure, are entitled to some consideration. She
The judgment of this court is, that the judgment and order appealed from be affirmed.