Mordecai v. Stutts

• Decision Date: 10 January 1882
• Docket Number: No. 1128.,1128.
• Citation: 16 S.C. 622
• Parties: Mordecai v. Stutts.
• Court: South Carolina Supreme Court

16 S.C. 622

Mordecai

v.Stutts.

No. 1128.

Supreme Court of South Carolina.

Jan. 10th, 1882.

OPINION by SIMPSON, C. J.

This case involved the construction of a power of sale contained in a mortgage of land, in words following, to wit: “And it is expressly understood and agreed that if, in any time within the period aforesaid, the said R. R. Stutts should fail or neglect to send, consign, ship and deliver to the said J. H. Parker & Co., in Charleston, the crude turpentine and resin, and spirits of turpentine, as provided in said bond, and the conditions and recitals thereof, according to the true intent and meaning thereof, then, on such default, said J. H. Parker & Co. shall have the right, if they see fit, to consider this mortgage forfeited, and the said J. H. Parker & Co., their executors, administrators or assigns shall be at liberty (if they see fit), and the said R. R. Stutts does hereby authorize and empower the said J. H. Parker & Co., their heirs, executors, administrators or assigns, to grant, bargain, sell, release and convey the said real estate, with its appurtenances, at public auction,” &c.

And the mortgagees having made sale and executed titles, and the purchaser having brought action for the recovery of the land and proved the non-payment of the debt before sale, but having made no proof of the failure by the mortgagor to ship resin, crude turpentine, &c., Held, that the plaintiff was properly nonsuited.