47 S.C. 460 | S.C. | 1896
The opinion of the Court was delivered by
The question in this case is, whether in a suit for foreclosure of a mortgage on one tract described in the complaint, a defendant, having a mortgage on that, and also on another tract, may have affirmative relief against his codefendant, the mortgagor, by a decree for the sale also of the tract not described in the complaint, and a judgment for deficiency. The facts out of which the question arose are as follows: Plaintiff brought suit to fore
At the reference before the master, to whom the case was referred, Turner and Carroll proved and introduced in evidence their claim and mortgage, asked a report from the master that they were entitled to have both tracts sold, and
The affirmative of the proposition stated is true, and there was, therefore, no error in the decree granting the affirmative relief prayed for in favor of Turner and Carroll against their codefendant, Anthony. Section 296 of the Code provides that “Judgment maybe given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may determine the ultimate rights of the parties on each side, as between themselves. And it may grant the defendant any affirmative relief to which he may be entitled.” In Beattie v. Latimer, 42 S. C., 319, this Court said: “Under this section, we see no reason why the Court, having all the parties before it, may not proceed to adjudicate the rights of one codefendant against his codefendants, provided the same can be done without prejudice to the rights of the plaintiff, and provided the pleadings and evidence furnish a proper basis for such adjudication. Such seems to be the construction adopted by the New York Courts, as shown by the authorities cited by respondent’s counsel in his argument. And such seems to be in accordance with the rule prevailing in the old Court of Equity in this State. See Molte v. Schult, 1 Hill Ch., 140, and Moss v. Bratton, 5 Rich. Eq., 1.” Was the relief granted in this case without prejudice to the right of the plaintiff? He does not complain, and it may be inferred he has not been prejudiced. Do the pleadings and the evidence in this case furnish a proper basis for the adjudication of the rights of the defendants among themselves? We think so. Under
In the case at bar, Turner and Carroll were proper parties as junior lien holders on the premises sought to be foreclosed. Their mortgage was properly set up in their answer, which set forth fully the grounds for the affirmative relief for which they prayed. All parties concerned were before the Court with due notice. The mortgage debt and the mortgage were established by evidence offered within the scope of the complaint, to say nothing of the answer. The same evidence required to establish the mortgage and mortgage debt, with respect to the tract or premises described in the,, complaint, established, also, all that
The judgment of the Circuit Court is affirmed.