People's B. & L. Ass'n v. Mayfield

42 S.C. 424 | S.C. | 1894

The opinion of the court was delivered by

Mr. Justice Pope.

It seems that on the 14th day of October, 1890, the defendant, J. G. Mayfield, borrowed of the plaintiff $700, and executed a bond to evidence and secure such loan. As security he pledged to the plaintiff seven shares of the capital stock of the building and loan association named as plaintiff, and also executed to it a mortgage on a certain lot of land in the city of Spartanburg, in this State. Thereafter the said defendant, J. G. Mayfield, sold and assigned said seven shares of the capital stock in said building and loan association, and also conveyed unto the defendant, P. A. Gardner, in fee simple, by deed, the said lot of land. P. A. Gardner failed in business, and was sued to judgment by the other defendants to this action. They sought to make their money by levy and sale of this lot of land herein referred to, but he resisted such sale until his homestead had been assigned to him. In this contest with his judgment creditors, P. A. Gardner prevailed; but inasmuch as the commissioners in homestead found the house and lot of land was worth $1,500, and could not be so divided as to lay off $1,000 thereof as his homestead, they recommended a sale of the whole, and that the sum of $1,000 from the proceeds of sale be paid to him as his homestead, and the balance of such proceeds be applied to the partial payment of his judgment creditors. This return was confirmed by the Circuit Court, and no appeal was taken.

After these proceedings, the present plaintiff instituted an action for the sale of the seven shares of stock pledged to it, and a foreclosure of the mortgage of the house and lot, and to this action the said J. G. Mayfield, P. A. Gardner, and his judgment creditors were all made parties defendant. In this action no contest is made with the plaintiff. All parties to the action concede that the plaintiff is entitled to the sale of the stock and the foreclosure of the mortgage by a sale, &c.; but the judgment creditors of the defendant, P. A. Gardner, say that while all this is true, still they have an equity to require the plaintiff to have applied to the satisfaction of its debt the seven shares of stock, and then to require the balance of the plaintiff’s debt paid out of the $1,000 homestead of defendant Gardner. The defendant Gardner lustily denies this equity. When the cause came on to be heard by his honor, Judge Wallace, at the Fall Term, 1893, of the Court of Common Pleas for Spartanburg, he decided that the judgment creditors of P. A. Gardner did have the equity they contended for, and he decreed accordingly.

From this decree, the defendant, P. A. Gardner, now appeals; and his grounds of appeal substantially raise these questions: First. That it was error to carve out a portion of defendant Gardner’s homestead after it had been ascertained. Second. That the judgment creditors of P. A. Gardner had no equity to have their debts paid out of a portion of his homestead. Third. That such judgment creditors are estopped from contesting defendant Gardner’s right to the homestead exemption. Fourth. That there was a jurisdictional defect arising from the absence of J. G. Mayfield beyond the court’s jurisdiction.

1 The first three grounds of appeal may be considered together. Is it true, that the judgment in favor of Gardner in his contest with his judgment creditors over his homestead, can be interposed in this action, where the parties and equities are quite distinct? We do not think so. It would have been impossible in the contest between the judgment creditors of Gardner and Gardner, to have considered any equities that might flow from the mortgage of the plaintiff here, for such instrument was not and could not have been before the court in that contest. This being true, the judgment establishing a homestead need not be again considered in the light of a barrier to the inquiry here made. To test the accuracy of the Circuit Judge, let us see what exactly was before him. It is admitted that the mortgage of plaintiff covered the entire house and lot. The judgment defendants here have liens that cover all of the house and lot, except the $1,000 homestead. Such being the case, why does not the two-fund doctrine of equity apply, and force the plaintiff having a lien on both the homestead and all outside of the homestead in the house and lot, upon the homestead, if sufficient for the payment of his debt, so that all the balance may be applied to the judgments of defendants, who only have a lien on one part of the house and lot?

2 As to the last ground of appeal, it appears that J. G. May-field accepted service of process in this case, and there is no proof of any facts going to negative the full force and effect of such service. It is by such service of the summons the court acquired jurisdiction of him. Jurisdiction once acquired as to a living party is enough. We see no merit here, and we are all the more ready to say so, because counsel for appellant handled it so gingerly in his argument, thereby indicating either a want of confidence in it or an unwillingness to persist in having it considered.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed; and it is ordered, that the cause be remanded to the Circuit Court for such further proceedings as may be necessary.