50 S.E. 24 | S.C. | 1905
February 7, 1905. The opinion of the Court was delivered by This is an appeal from a judgment ordering that a writ of mandamus do issue commanding Samuel B. George, as clerk of the Court, to set apart to the petitioner a homestead in the lands described in the petition, as provided by the statute. The facts are fully set out in said judgment. Samuel B. George, as clerk of the Court, appealed upon several exceptions.
After D.J. Hallman executed the deed to J.H. Lewie, to secure the payment of a certain sum of money, he became *408 further indebted to the said J.H. Lewie. The heirs of J.
H. Lewie brought an action to recover the land described in the petition, and for a partition thereof. In answering the complaint, D.J. Hallman did not set up a claim to homestead, but alleged that the indebtedness intended to be secured by the deed as a mortgage, had been satisfied, and invoked, the aid of the Court, in exercise of its chancery powers, to order a reconveyance of the land to him. The Circuit Court, upon hearing those issues, found as matter of fact, that the original indebtedness, intended to be secured by the deed as a mortgage, had been satisfied, and that the said D.J. Hallman was entitled to a reconveyance of the land. On appeal, the Supreme Court held that the Circuit Court was in error, and that D.J. Hallman was not entitled to a reconveyance until he paid, not only the original, but all subsequent indebtedness. It remanded the case for the purpose of having all the indebtedness ascertained. This was subsequently done, and a decree was made adjudging reconveyance to D.J. Hallman, provided he tendered the amount so found within a certain time therein specified, but also providing for a sale of the land to pay the said indebtedness, in case the tender was not made. There was no appeal from this decree.
The Supreme Court applied the wholesome doctrine that when a party seeks equity he must do equity, and, therefore, that when D.J. Hallman invoked the aid of the Court in the exercise of its equitable jurisdiction to have the deed declared to be a mortgage, and the land reconveyed to him, it was incumbent on him, not only to pay the original indebtedness, but likewise all subsequent claims J.H. Lewie held against him. The subsequent indebtedness was practically placed upon the same footing as the original debt. The entire indebtedness was, therefore, paramount to the claim of homestead. Ex parte Kurz,
Furthermore, the petitioner by failing to set up his claim of homestead is concluded by the judgments heretofore rendered. Culler v. Crim,
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the petition dismissed.