*1 The PERPETUAL BUILDING AND LOAN ASSOCIATION OF ANDERSON, Respondent, BRAUN, v. Kenneth R. Walter M. Burckhalter, Morris, O’Shields, Harold Simons, W. W. James E. Townsend, Jr., Tucker, A. Tucker, Jr., F. John W. E. W. G. Emile Tucker, Aiken-Anderson, Inc., Plans, Inc., and American Lease Co., Miracle Mile Partnership General South under Carolina Law Braun, of whom Burckhalter, Kenneth R. M. Walter Harold G. Morris, O’Shields, Simons, Townsend, Jr., W. W. E. James F. A. Tucker, Tucker, John are, W. Jr. and W. G. Emile Tucker Appellants.
(242 (2d) 407) S. E. *2 Harte, Aiken, Bodenheimer, Harte T. John Loadholt, Pales, Blatt, Bedingfield, Thomаs W. Weeks Richardson, Barnwell, Poole, Appellants, & Motley for Cox, McIntosh, Threlkeld, Jones, & of Ander- Newman son, Respondent,
March 1978. Justice:,
Ness,
The sole matter for review is the
of granting
propriety
when it was
demanded
specifically
in the foreclosure
hold a deficiency judgment
We
complaint.
be
foreclosure that it be
such an
relief.1 Accordingly,
general prayer
supported
909; Shepherd
Pepper,
133 U. S
(2d), Mortgages,
1 55 Am.
§
10 S.
Appellants respondent default, for the debt. as security Upon appellants’ mort- foreclosure of the commenced suit seeking respondent receiver and sale of the appointment gage, premises, There was and proper. such other relief as might just or for a for the debt specific prayer rec- The circuit with the referee’s special judge complied ommendation ordered foreclosure and sale of the mort- days. for thirty gaged premises. sale the indebtedness remained unsatisfied Following motion, cir- $171,835.32. extent of Upon respondent’s cuit appellants ordered balance. the remaining *3 assert the foreclosure action re- commenced
Appellants by rem and therefore could spondent not support of a We While deficiency judgment. disagree. the issue is of first raised this one appeal impression State, this we believe our resolution of it is consistent with law and with the nature of a foreclosure general mortgage in South action Carolina.
A mortgage for represents security an not obligation, full thereof. is It payment implicit taking that thе creditor is to look to the only Indeed, for satisfaction of the debt. he property may ignore indebtedness, an action at law on the security bring or he foreclosure to his lien. satisfy may proceеd by
It is that if generally accepted prem mortgaged ises are sold under a foreclosure decree fail to debt, a sufficientamount to bring the mort satisfy entitled, absent gagee limitation or waiver statutory a on his to defi part, personal judgment remaining 55 Am. ciency. 905. mort (2d), Mortgages, § “[I]f Jur. does not for a ask decree in the gagee law entered, has at suit, he remedy and no decree such Id. remains due.” debt for whаt on the action by way therefore, law, of Under principles general him due the full amount a is not denied mortgagee remedy his to because he elects initially pursue merely as a for An foreclosure. action a is taken as a matter of course. See Glenn to foreclosure sequel 1, be even 69. to true on Vol. This Mortgages, appears § to de when the neglects specifically plead a court “in has been held that has It ficiency judgment. and that deficiency, herent a decree authorize power” be defendant or motion need given specific notice 92 C. S. Ven as decree follows implicitly. inasmuch such J. “Moreover, a decree de since for a Purchaser 448. dor & § is an incident of suit in it may a foreclosure ficiency equity, under a relief.” 55 Am. prayer general 909. (2d), Mortgages, §
The United States Court Supreme Shepherd Ed. 706 L. 133 U. S. 10 S. Ct. Pepper, neces be a held a decree for a (1890), in equity. upholding foreclosure suit sary for a decree to render a personal the lower court’s decision under a in bill for relief general prayer equity, matter was Court noted the within the discretion. judge’s law Prior to Carolina adhered to common South foreclose an action whereby mortgages principle *4 of In in rеm. the event was as strictly regarded action commence an default, the was to required mortgagee the to bar foreclose the mortgage, in a court to equity and to confirm to equity redemptiоn mortgagor’s right In in case a personal title the mortgagee. good com- the was required was sought, to obtain a an at law judgment. mence action the na- 1791, changed Legislature In the South Carolina on condition from that of a conveyance of a ture 342
to a lien. The Act of forth in mere 1791 set a note to Mitchell v. L. 45 S. C. Bogan, (11 Rich) 691 In the case of Anderson 30 S. C. subsequent Pilgram, 9 Court refused to follow the rule 1888), elsewherе that a could not adopted be rendered the latter in a foreclosure suit since was solely in rem. State, The Anderson court that in this stated in personam action for as foreclosure was well prоceeding rem, therefore, as in and could be in a foreclosure suit. as- Accordingly, appellants’ sertion that the instant action is in rem is inconsistent with the nature of foreclosure in this State. proceeding Barnes, al.,
In McConnell et al. v. et 142 S. C. S. E. this Court dicta that a (1927), recognized judg sent for incidental to the relief deficiency merely sought t a action. The court noted Act of 1791 action integrated and the actiоn for the sale, the strict distinction be abandoning tween actions rem and in This personam. construction is consistent with the maxim that upon juris equity Obtaining diction of an action will administer full and equitable legal relief. see 27 Am. Generally, (2d), Equity, §§ et seq. State
Nothing scheme statutory us the persuades lower court erred granting respondent’s motion for de- Section ficiency 29-3-630 the 1976 Code of Laws of South Carolina provides establishment of the debt secured case, sale. prior this respondent alleged the full amount debt owed in its complaint, referee special circuit both established the amount due in their report order. Inasmuch аs the debt “established the judgment of competent jurisdiction” 29-3-630, pursuant Section we do not believe appellants were surprised by respondent’s motion for a deficiency judg- ment. case,
Moreover in this thirty with dаys compliance Section 15-39-720 of the 1976
343 thirty day states the 15-39-760 of Laws. Code Section Code is an waiver express not when there will requirement apply statute That provides, of right deficiency judgment. part: shall tо 15-39-750
“The of 15-39-720 provisions §§ the complaint if suit any apply brought states that no therein personal is expressly such judgment and that
demanded any right . waived . .” in- indicates legislature’s above
We believe the language suсh has when only judgment tention to deny of an express is no evidence There been waived. expressly waiver by respondent. of South Laws of the Code of
Section 29-3-660 of a for the rendition Carolina provides in part: and states ad- may the court “In to foreclose mortgages actions resi- of' mortgagor direct the payment unsatisfied remain debt that due the mortgage . . .” a sale the' mortgaged premises forе- rendition the court. is thus with discretionary closure proceedings al., S. E. 405 et v. Caldwell Berry law of mortgage of established light general principles believe we by respondent, and absent an waiver express his disсretion acted within circuit judge motion for
Affirmed. concur. JJ., Rhodes Gregory,
Littlejohn, J.,C. Lewis, dissents : Chief (dissenting)
Lewis, Justice in this action sought The complaint a receiver sale appointment premises, mortgage, and such other relief as There might just proper. *6 for a or for prayer personal judgment judg- ment, and none was or for in the final granted provided de- Instead, cree of foreclosure. the decree the success- required ful bidder to with his bid within after comply days ten (10) the sale. as stated in the the
Although, majority opinion, such was not done under the thirty days, decree, foreclosure but to its contrary specific provisions. It is elementary that the to а must be de- right judgment termined with reference relief the to the sought pleadings. A deficiency is a a de- judgment and personal judgment fendant is entitled to notice in the it is that pleadings sought. was, No and personal was there judgment sought therefore, no basis which to a upon deficiency judg- grant ment. announces, limitation, majority opinion without that
a is deficiencyjudgment “such fore closure it that a re by prayer supported gеneral is, submit, lief.” a Such I principle without respectfully sup in our statutes or port decisions. On the the case contrary, Barnes, of McConnell v. 142 S. (cited in the demonstrates majority that it opinion), customary for а for a pray in his judgment if he complaint desires to obtain such relief under Section 29-3-660, 29-3-650 or 1976 Code of At Laws. E.S. 312, it is stated:
. . . after the of the passage act which declared that the .feeto should continue the mortgaged property mort- gagor a (the mortgagee having only lien the thereon), of the law created also change a in the change practice, that it became proper include a decree direction to the report deficiency, the applying proceeds of sale debt, then allow mortgagee deficiency.
Later, the act of 1894 Section passed [present 29-3- 650], foreclosure, allowing the action of mortgagee, the decree a to include debt; that judg- the mortgage amount
mortgagor for real all other lien upon constituting ment be entered up, of the net proceeds estate, be credited with later to added.) foreclosure sale. (Emphasis that Each of the abovementioned procedures contemplates has which made a demand for deficiency has the mortgagee decree the court at the time been acknowledged by and sale. directing the foreclosure of mort-
A seeks only which complaint as seek- interpreted and sale gage premises properly described from security of the debt satisfaction ing default, under such could in the A defendant mortgage. *7 that complaint, upon assumption mortgagee, It is not require was involved. unreasonable the security who seeks satisfaction his debt beyond that notice in the foreclosure complaint give mortgage, he all of the prop- demands mortgagee’s to notify The fails erty. cоmplaint completely present to seek plaintiff on the defendant part purpose such relief.
The order the lower court a deficiency judg- ment should reversed. STATE, GILLIAM, Appellant, Respondent. J. Thomas
(242 (2d) 410)