55 S.E. 317 | S.C. | 1906
September 26, 1906. The opinion of the Court was delivered by This appeal is from an order overruling a demurrer to the complaint. The complaint alleged in substance that on February the 4th, 1884, Moses Levi undertook to sell at public auction six-elevenths of the land therein described under the power contained in a mortgage given to him by the defendant, Joseph D. Griffin, and under this attempted sale subsequently executed to Ferdinand Levi, who was the highest bidder at the sale, what purported to be a deed of conveyance, for the consideration of $650; but that no title really passed, for the reason that the deed was executed by Moses Levi in his own name instead of in the name of the mortgagor; that on February the 14th, 1891, Ferdinand Levi undertook to convey the same interest in the land to Moses Levi, for the consideration of $650, and that thereafter, on July 16th, 1891, Moses Levi conveyed by deed to the plaintiff, for the consideration of $1,000, all his right. title, interest in the land, embracing not only the six shares covered by the attempted sale under the mortgage but other shares subsequently acquired; that plaintiff "purchased the said premises from the said Moses Levi under the honest belief that by the sale thereof to him he would be vested with a perfect, legal title thereto;" that Moses Levi died on the 26th day of January, 1899, and David Levi and Abe Levi are executors of his will; and that there is due and unpaid on the mortgage the sum of $2,585, with interest from January 16th, 1883, at the rate of ten per cent per annum. Under these allegations, the plaintiff asks to be subrogated to the rights of Moses Levi and Ferdinand Levi to the extent of the *251 sum of $1,000 paid by him for the land, and interest thereon, and that he have judgment of foreclosure for that amount.
A demurrer to the original complaint in the cause was sustained by this Court (
But, waiving this, the allegations of the complaint, if true, entitle the plaintiff to subrogation in any view that can be taken. It is not necessary to the plaintiff's right of subrogation to allege and prove that either Ferdinand Levi or Moses Levi honestly believed the sale to be valid and the title made under it good, for the deeds being actually ineffectual to convey the title, the mortgage was not discharged by it, and when the plaintiff paid his money and took the deed from the mortgagee, not as a speculative volunteer, but in good faith believing his title to be good, he was entitled *252
to have from the mortgagee the benefit of the mortgage to the extent of the purchase money paid by him. On this point the case of Sims v. Steadman,
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.