| S.C. | May 8, 1869
The opinion of the Court was delivered by
The bill was filed to foreclose a purchase money mortgage, executed by defendant, Haselden, toR. P. Ellerbe, the assignor of plaintiff, September 21, 1859, to secure certain notes concerning the purchase money on a sale of the mortgaged premises by Ellerbe to Haselden. Godbold, the alienee of the mortgagor, was made a party, and answered, claiming that the mortgagee should account for the value of certain slaves which had been mortgaged to him by Haselden at the same time that he mortgaged the land as part security for the purchase money, and which had been seized for condition broken and held under the mortgage. The agent of the mortgagee, on seizing the slaves under the mortgage, returned them to the mortgagor, taking from him a forthcoming bond. They remained unsold until released under the general emancipation in 1865.
This case was before the Court of Appeals, at May Term, 1868, on appeal from a decree of Chancellor Johnson. That Court decided that the possession of the mortgagor under the forthcoming bond was the lawful possession of the mortgagee, the former being, quoad hoe, his mere bailee. Also, that the purchaser, Godbold, “ has an equity to require the mortgagee to show that the mortgaged chattels, seized nearly two years before his purchase, and so long retained in the possession or under the control and subject to the call of the mortgagee, have been lost, and so fail to produce actual satisfaction in full, or, at least, pro tanto, without fault on his part.” It was ordered, “ that the cause be remanded to the Circuit Court for a further hearing, upon the principles herein announced, and that the Commissioner do inquire and report to that Court the facts touching the seizure of the slaves and the subsequent failure of the mortgagee to proceed with diligence to pursue his remedy against them under his mortgage, which he had thus begun, and the causes thereof, together with any special matter touching the merits of the controversy, and that, thereupon, and upon such other proper hearing as may be had, the said Court determine whether the said chattels, so seized, were lost by or without the fault or legal responsibility therefor of the mortgagee, and make the appropriate orders that such determination may require.”
The questions left open by the decree were, therefore: First. Whether satisfaction of the mortgage debt had been lost through the fault of the mortgagee, as it regards the equity of the alienee to have such
The case subsequently coming before the same Chancellor, he held that there was no such delay on the part of the mortgagee in enforcing his right; “that it operated as a fraud upon the rights of Godbold, a purchaser of the land for valuable considerationand he decreed the foreclosure of the mortgage for the entire mortgage debt.
We do not think the Chancellor correctly apprehended the bearing of the decision of the Court of Appeals. Under that decision the mortgagee was bound to free.hmself from fault. The -decree, without excluding the existence of fault, is based upon the idea that the delay did not operate as a fraud on Godbold. The difference is not unimportant. The appellate decree held the mortgagee to diligence in enforcing his remedies against the chattel property, as an incident of the equity established in Godbold. The Chancellor confined his inquiry to whether Godbold’s rights, as a purchaser for a valuable consideration, had been invaded by conduct on the part of the mortgagee, operating fraudulently to defeat or impair them. Godbold’s equity to demand diligence on the part of the mortgagee did not rest alone on his character as a bono, fide purchaser for a valuable consideration, but upon the fact that the mortgagee held another security, which ought, in equity, to be enforced before calling upon the alienee to redeem the land by paying the mortgage debt. Want of diligence on the part of the mortgagee might exist, notwithstanding the conclusions arrived at by the Chancellor.
The grounds of excusing the delay set forth in the decree are, the existence of the war, the stay law, passed a day or two after the negroes had been seized, and the popular impression that it stopped the collection of all debts, and the depreciation of Confederate money that soon thereafter occurred; “ that no person wished to enforce the payment of any claim which was well secured; and the debt for which the negroes was given certainly was amply secured.” All this recognizes the entire independence of the mortgagee of any necessity of considering the interests of the alienee of the land, and supposes him to be bound only to consult his own interests in regard to delaying the sale of the chattel property, thus wholly ignoring the idea of diligence enforced by the decision of the Court of Appeals. The reasons thus assigned are insufficient to sustain the conclusions arrived at by the Chancellor.
The existence of the stay law has nothing to do with the case, as it did not pretend to interfere with transactions of this kind; nor can the popular impression to the contrary, if we are at liberty to assume the existence of such an impression, weigh anything in this Court. As well might the popular impression as to the state of the law, as between the mortgagee and the alienee of the land, be asserted to contradict the law of the case as declared by the Appellate Court. Neither has the depreciation of Confederate money anything to do with the case. Had the mortgagee offered the property for sale, and failed to realize an available currency in payment for it, a case for the consideration of the Court might have been presented. But such was not the case. The natural course for the mortgagee to pursue in that ease was to appropriate the property, and, when called on to account for it, to allow its value on the mortgage debt.
• It is evident that the mortgagee assumed to deal with the chattel property, without regard to the equity of Godbold, and is chargeable with the loss.
The decree will be set aside, and the cause remanded to the Circuit Court for an account of the value of the mortgaged slaves seized and held by the mortgagee, to be computed at the time of such seizure ; and if the value thereof shall equal the amount due on the mortgage set forth in the bill of complaint for principal and interest computed to the time of such seizure, then the Circuit Court will dismiss the bill ■ and if such ascertained value shall fall short of such mortgaged debt and interest, then a decree of foreclosure will be made by the Circuit Court for such balance, with interest thereon to the date of such decree.