Griffin v. Griffin

49 S.E. 561 | S.C. | 1904

November 24, 1904. The opinion of the Court was delivered by The Circuit Court overruled the demurrer to the complaint and the defendants appeal. It is well established that a purchaser who buys at a void sale purporting to be made under the power contained in a mortgage, with belief that he will obtain a good title, is subrogated to the rights of the mortgagee and may foreclose the mortgage. As we understand, the objection to this complaint is that there is no allegation that the purchaser bought and paid the purchase money honestly believing that he would obtain a good title. In Sims v. Steadman, 62 S.C. 300, followed in Chambers v. Bookman, 67 S.C. 454, the equity of subrogation is placed on the ground that the purchaser bought under the honest belief that by the sale he would be clothed with the legal title. Perhaps cases may arise presenting peculiar features justifying the Court in applying the doctrine of subrogation, even when the purchaser did not feel confident of his title, but was impelled to bid at the sale to protect his own interests rather than take the risk of the Court holding a sale valid which he himself regarded invalid or of doubtful validity. No such peculiar circumstances are alleged in this case, and the demurrer must be sustained.

It is held in Givins v. Carroll, 40 S.C. 413, that the subrogation of the purchaser to the rights of the mortgagee is ordinarily limited to the amount of the purchase money, and for this reason the payment of the purchase money and its amount should usually be alleged. We do not say, however, that a purchaser might not have equities as between himself and the mortgagee which would take the case out of the ordinary rule. As the mortgagee has not been made a party, and he, and not the mortgagor, is primarily interested in this question, we express no opinion as to whether the facts alleged in the complaint makes this case an exception to the rule laid down in Givins v. Carroll, supra.

The judgment of this Court is, that the judgment of the Circuit Court be reversed and that the demurrer be sustained, with leave to the plaintiff to move to amend as he may be advised.