40 S.E. 677 | S.C. | 1902
January 20, 1902. The opinion of the Court was delivered by
The appeal herein is from the following order of his Honor, Judge Benet: "This is an action at law to recover possession of a tract of land described in *302
the complaint. The case was tried by me without a jury, by the written consent of the attorneys for all the parties, on an agreed statement of facts, and the records of certain deeds and mortgages therein referred to. The plaintiffs and the defendants claim title to the land in dispute from a common source, to wit: Charles Sims. On March 30th, 1878, Charles Sims, being seized and possessed of said track, executed a mortgage thereof to James Clemens, to secure his note for $55; and on December 8th, 1881, he gave a second mortgage of the same tract to B.D. Foster to secure his note for $58. Clemens thereafter duly assigned his note and mortgage to Foster. Both mortgages were in form, what are commonly known as Scotch mortgages, and contained full covenants of warranty. Charles Sims died, intestate, on December 14th, 1881, living on the land, leaving the plaintiffs as his only heirs at law. The condition of each of said mortgages having been broken, B.D. Foster duly advertised the land for sale, under and by virtue of the power contained in said mortgages, and sold it at public auction on April 20th, 1882, to J.N. Cook at and for the sum of $190, and executed a deed to Cook in his own (Foster's) name. Cook went into immediate possession, under and by virtue of his said purchase and deed, and by a continuous chain of title from him, the defendants claim under said conveyance. The defendants are entitled to be subrogated to the rights and equities of the original mortgagees under said mortgages.Givens v. Carroll,
"It is, therefore, ordered and adjudged, that the complaint be dismissed with costs."
When Foster foreclosed the mortgages and sold in 1882, he signed the conveyance simply "B.D. Foster."
The plaintiffs appealed upon the following exceptions:
"1. Because his Honor erred in holding that `The defendants are entitled to be subrogated to the rights and equities of the original mortgagees under their mortgages,' and in going further and holding that the defendants were, therefore, mortgagees in possession, and, therefore, entitled to hold the land as against the plaintiffs, and in dismissing the complaint, when he should have held that this being an action at law, each party must stand on his legal rights; and if the sale of the land by Foster to Cook operated as an assignment of the mortgage debt, that the defendants should be left to the foreclosure of their mortgage on the equity side of the Court, where all the equities of the parties could be adjusted; it being suggested that he should have held that the defendants are the owners of the mortgagee's debt and the plaintiffs of the land.
"2. Because his Honor erred in holding that the rights of the parties to the mortgages and those claiming under them, must be determined by the law as it stood at the time of the execution of the mortgages, when he should have held that the power of foreclosure and sale was a part of the remedy and not of the contract; and that the law as it stood at the time of the sale, April 20, 1882, should govern the rights of the parties to this action.
"3. Because his Honor erred in finding that the defendants are mortgagees in possession of the mortgaged premises, it being submitted that since the 18th of December, 1879, no one can become what is known as a `mortgagee in possession' in this State. *304
"4. Because his Honor erred in holding that the plaintiffs cannot recover possession from the defendants, when he should have held that the plaintiffs are entitled to possession and left the parties to an adjustment of the mortgages, debt, rents, profits, c., on the equity side of the Court, more especially since the defendants set out the mortgages in their answer, and ask that they be foreclosed."
The testimony is not set out in the record. Indeed, it does not appear that any was introduced; no question was raised as to the sufficiency of the allegations of the answer to constitute a defense, nor do the exceptions assign error in findings of fact. The presumption in favor of the correctness of the decree, must prevail unless, as matter of law, the exceptions show that it was erroneous.
The main question is whether the heirs of the mortgagor are entitled to recover possession of the land from the defendants claiming under a continuous chain of title from one who entered upon the land, under a deed made in execution of a defective and invalid power of sale contained in the mortgage, in good faith and in the honest belief that he was clothed with the legal title, at the time of such entry. The cases of Givens v. Carroll,
Error is also assigned on the part of the Circuit Judge, in dismissing the complaint, when he should have held that this being an action at law, each party must stand on his legal rights, and if the sale of the land by Foster to Cook operated as an assignment of the mortgage debt, that the defendants should be left to the foreclosure of their mortgage on the equity side of the Court, where all the equities of the parties could be adjusted. The only relief which the plaintiffs had the right to demand under the allegations of the complaint was to recover possession of the land. The defendant set up a defense as a bar to the plaintiffs' legal cause of action. They also asked, in case their defense was ineffectual for that purpose, for a judgment of foreclosure. As hereinbefore stated, their defense was sufficient to defeat the legal action of the plaintiffs to recover possession of the land. As the pleadings on the part of the plaintiffs do not show that they were entitled to any further relief, we fail to see wherein they have the right to complain that the defendants were not granted other and further *306 relief. The foregoing views render the question raised by the second exception immaterial.
We may say, however, that the proviso related merely to the remedy, the rights thereunder were only contingent, and its repeal did not impair the obligation of the contract or divest a vested right. Bank v. Garlington,
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed, without prejudice to the right of the plaintiffs to bring an action to redeem.