36 S.C. 569 | S.C. | 1892
The opinion of the court was delivered by
In January, 1884, one E. G. Dendy, as the owner of a tract of land, containing sixty-eight acres, situated in Abbeville County, in this State, mortgaged the same to Francis A. Connor to secure a debt of $213, and of this debt Dendy paid the one-half thereof. In September, 1884, E. G. Dendy sold this land to one W. F. Waite at the price of $475, secured to be paid by three notes, each for $158.33$-, and secured by a mortgage of the premises. Only a part of one of said notes was paid. Both the foregoing mortgages were duly recorded. On the 20 July, 1886, E. G. Dendy, for value, assigned the three notes and mortgage given to him by W. F. Waite to the plaintiff, Lula Dendy. Francis A. Connor, under a power in the mortgage, sold at public auction, after due advertisement, the tract of mortgaged land on the first Monday of January, 1887, at the price of $115, to himself as the highest bidder, and by deed to himself conveyed said land, signing said deed “Francis A. Connor, mortgagee,” without any seal. In the spring of 1887, F. A. Connor sold and conveyed said tract of land to the defendant, Mitchell Goggins, at the price of $300, on credit. About $200 of this purchase money has been paid. Mortgage secures the amount still due. Mitchell Goggins has been in possession of said lands since the spring of 1887 to the present time.
The present action has been brought by Lula Dendy to foreclose the mortgage she holds thereon, to which the said W. F. Waite, Francis A. Connor, and Mitchell Goggins have been made parties defendant as having or claiming some interest in such mortgaged lands. The defendant, W. F. Waite, did not answer. The defendant, Francis A. Connor, answered, setting up the facts herein recited, and claiming that if there were any defects or omissions in the deed he made to himself, he should now'be allowed to correct the same ; that the sale made by him was valid by reason of the power contained in the mortgage of Dendy to himself; and that the plaintiff has no right to maintain this action of foreclosure. The defendant Goggins answered, adopting the answer of Francis A. Connor as his own.
By consent of the parties to the action, all the issues of law
From this decree the defendants, Francis A. Connor and Mitchell Goggins, have appealed to this court on the following grounds: I. Because his honor erred in holding that the sale and attempted conveyance did not pass the title to the premises, to such an extent, at least, as to protect the defendants from any action by the plaintiff for foreclosure. II. Because he erred in holding that the attempted conveyance by the defendant to himself cannot be supplied or corrected. III. Because he erred in confirming the master’s first finding of fact, that the sale and attempted conveyance by Mr. Connor were not effectual to pass the legal title to the land. It is submitted that this is a question of law and not of fact. IV. Because he erred in holding that the plaintiff was entitled to a judgment of foreclosure against W. F. Waite, and directed that the mortgaged premises should be sold. V. Because he erred in holding that the proceeds should be applied to the payment of all the costs of this action first. VI. Because he erred in not holding that plaintiff could not maintain this suit against the defendants, appellants. VII. Because he erred in not holding that any defect in defendants’ deed could be corrected nunc pro tunc.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.