48 S.C. 325 | S.C. | 1897
The opinion of the Court was delivered by
Under proceedings for foreclosure of mortgages in the two cases stated in the title, two tracts of land in Barnwell County — one containing thirty and the other twenty acres — were offered for sale by the master of said county in the fall of 1895, under the judgments of foreclosure obtained in said cases, and bid off by'the petitioner, E. H. Jenkins, who complied with 'the terms of the sales, and received titles from the master. These sales were duly reported to and confirmed by the Court of Common Pleas for said county. Both of these judgments of foreclosure contained the usual provision, that the purchaser be let into possession upon “the production of the master’s deed, and a certified copy of the order confirming the report of the sale.” In pursuance thereof, the purchaser, E. H. Jenkins, made due demand upon the said J. J. Hogg and one George M. Hogg, who it seems was in possession. of the twenty-acre tract, for the possession of the premises covered by the mortgages, exhibiting to them the master’s deeds, together with certified copies of the orders confirming the sale. With this demand the said J. J. Hogg and George M. Hogg refused to comply. Thereupon this petition was filed by the said E. H. Jenkins, setting forth all the facts relied upon by him, and praying that the said J. J. Hogg and George M. Hogg be required to surrender possession of the mortgaged premises to the petitioner, and in default thereof, that they be removed by the sheriff of the said county, and attached for contempt. Due notice was given to the said J. J. Hogg and George M. Hogg of a motion
The appellant, George M. Hogg, who, it is conceded, was never made a party to either of the' actions for foreclosure, states in his affidavit: 1st.' That the said J. J. Hogg never was the owner of the twenty-acre tract, and never was in possession thereof as owner. 2d. That for many years prior to the 1st of June, 1881, the twenty-acre tract belonged to one William G. Hogg, and that appellant was in possession thereof as tenant of said Wm. G. Hogg. 3d. That on said 1st of June, 1881, the appellant purchased the said twenty-acre tract from the said William G. Hogg, paying the purchase money thereof, $400, out of his own funds, and the said Wm. G. Hogg “then executed a deed of said tract of land to Junius J. Hogg, and delivered the same to this respondent, Geo. M. Hogg, who took said deed for his own benefit, and filed it away among his papers, and then took possession thereof as owner ever since said 1st day of June, 1881, adversely to all other claims, and still has such possession; and the said deed to Junius J. Hogg from W. G. Hogg was never delivered to said Junius J. Hogg.” 4th. That the said deed “was, in the year 1891, without the knowledge or consent of appellant, taken from his possession and placed upon record;” of all which appel
The Circuit Judge seems to have based his conclusion largefy upon the assumption that George M. Hogg was the
We may also add, that evén if it were conceded that Geo. M. Hogg was the tenant of J. J. Hogg, it has been held, in New York, in the case of Boynton v. Jackaway, 10 Paige, 307, that a tenant of the mortgagor, who went into posses
The judgment of this Court is, that the order appealed from, in so far as it affects the rights of the appellant, Geo. M. Hogg, be reversed and set aside, without prejudice, however, to the right of the petitioner, E. H. Jenkins, to institute such other proceedings as he may be advised is proper to obtain possession of the land in question.