Henderson v. Trimmier

32 S.C. 269 | S.C. | 1890

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

It appears that A. J. Henderson, testator of Fazina Henderson, in 1876 became indebted to F. M. Trimmier, defendant’s intestate, in the sum of $300, borrowed money, which he secured by a mortgage upon a tract of land situate in Spartanburg County, giving power to the mortgagee to sell said land in case of default. At the time there were several judgments against Henderson, and some time'after the execution of said mortgage, one Mathis obtained a judgment against the said Henderson for $661.75, upon which execution was issued in December, 1880. Trimmier, the mortgagee, now deceased, became the owner of this judgment, under which, and in pursuance of his orders, the land was sold by the sheriff in April, 1887, the plaintiffs being the purchasers at the price of $195. Trimmier being the only other bidder. At the time of this sale there was a small balance due on one of the senior judgments, to wit, the Cooley judgment; the other senior judgments had been satisfied. Trimmier received the proceeds of the sale.

The judgment of Mathis, as stated above, had been obtained in 1880, and a levy made at the same time by a former sheriff, but no sale was made until Gentry came into office, who in March, 1887, endorsed a renewal of this levy and sold the land in April, 1887. Immediately after this sale, Trimmier, by virtue of the power given him in the mortgage, advertised the land for sale thereunder in May, 1887. He was restrained by a temporary injunction granted by his honor, Judge Wallace, in the action below.

The main question in the appeal is, whether the sale made by the sheriff as above, divested the lien of the Trimmier mortgage, in view of the fact that the senior Cooley judgment had not been fully paid. The appellant contends that, a levy having been made under the Mathis execution in 1880 by a former sheriff, and no sale made thereunder before its active energy had expired in March, 1886, that the subsequent endorsement of a levy by the subsequent sheriff'in 1887 was nugatory, and the sale thereunder was void, and therefore could not affect the lien of the mortgage. His honor, Judge Fraser, held otherwise, and made the injunction perpetual.

The case of Gassaway v. Hall, 3 Hill, 289, and also Toomer v. Purkey, 1 Mill Con. R., 323, are conclusive upon the question. In the first case a levy was made and endorsed on the Jifa. before its return day, and the sale was made by a succeeding sheriff five years afterwards. Held, that the sale was valid. Nearly the same facts in the other case, and the sale was also held valid. We refer to those oases not only as authority, but for the reasoning of the learned judge who delivered the opinion of the court. In the last case, Judge Johnson, in commenting on Sims v. Randall, 2 Bay, 524, relied on here by appellant, stated that it appeared from MSS. notes of Judge Bay, that both the levy and the sale was made after the return day of the execution. A very marked difference from the case here, and also from Gassaway v. Hall and Toomer v. Purkey, supra.

Upon the authority of these two cases, we hold that the sale here was good, and inasmuch as it was found below as matter of fact, that the senior Cooley judgment had not been fully paid, a finding which we see no reason to disturb, it follows that the lien of the mortgage was divested, and therefore that the mortgagee was proceeding without authority.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.