Thomas v. Raymond
| Decision Date | 19 June 1873 |
| Citation | 4 S.C. 347 |
| Parties | THOMAS v. RAYMOND. |
| Court | South Carolina Supreme Court |
Under a bill in equity for foreclosure an order of reference to ascertain the amount of the mortgage debt was made in July 1866, by Chancellor J. An appeal was taken, and, in December 1867, the order was affirmed by the Court of Errors. In January, 1868, a final order for sale of the mortgaged premises was made by Chancellor C., and in May, 1868, the General commanding the military district made a special military order, which-reciting that Chancellor J. had made an order in the case for sale of certain premises in violation & c.-set aside, vacated, and annulled said order Held , That the military order applied to the order made by Chancellor J. alone, and that the order for sale made by Chancellor C. remained unaffected by it.
A Court of Equity has no jurisdiction to correct, on the ground of mistake, the order of a military commandant exercising supreme authority.
BEFORE ORR, J., AT GREENVILLE, SEPTEMBER, 1872.
This was a bill in equity for foreclosure, filed by William M. Thomas, plaintiff, against Mary Raymond, defendant.
The following statement of facts and dates, in addition to those stated in the opinion of this Court, seems to include everything necessary to a full understanding of the points decided by the Court. The military order, No. 10, mentioned in the special military order dated May 23d, 1868, recited in the opinion of this Court, was issued on April 10th, 1867, after the order of reference of Chancellor Johnson, and before the final order for sale of Chancellor Carroll, both of which are copied in the opinion of the Court. The decree of the Court of Errors affirming the order of Chancellor Johnson was made in December, 1867.-See Thomas vs. Raymond , 13 Rich. Eq. On December 4th, 1868, the mortgaged premises were sold by the Commissioner, under the decree of Chancellor Carroll. The sale did not realize a sum sufficient to satisfy the mortgage debt, and for the balance a writ of fi. fa. was issued. This writ was sent to Charleston, (which is in the First Judicial Circuit of the State- Greenville being in the Eighth,) to be enforced, and thereupon the petition for an injunction or to set aside the decrees mentioned in the opinion of this Court was filed in Charleston by the defendant. Neither the contents of the petition, nor the proceedings under it before Judge Carpenter, Judge of the First Judicial Circuit, are stated in the papers furnished the Reporter.
The case came before His Honor Judge Orr, on the report of the Commissioner on sales. His Honor confirmed the report, and ordered that the purchaser have the writ of assistance to obtain the possession of the premises; that the injunction granted by Judge Carpenter be dissolved, and that the plaintiff have judgment for the balance of the debt after deducting the proceeds to the sale.
Both parties appealed. The plaintiff's grounds of appeal it is unnecessary to state. The defendant's are substantially as follows:
1. That the decree for sale of the mortgaged premises was annulled by the military order of May 23d, 1868.
2. That the rights of the parties were finally determined by the order made by Judge Carpenter.
Earle & Blythe , for plaintiff.
Campbell & Seabrook, Birnie , contra.
Both parties, plaintiff and defendant, are appellants. There are many intricacies presented by the case, arising from the informality of the proceedings of both parties in the Court below. It will not be necessary to solve all the questions arising out of these informalities. As they do not affect the real questions at issue between the parties, and as they sprung out of peculiar and exceptional complications between the military government of 1867 and the civil authorities, and out of the constitutional changes of the Judiciary of the State made in 1868, their solution will be without general interest.
In July, 1866, Chancellor Johnson made a decretal order in equity, upon a bill to foreclose a mortgage, filed by W. M. Thomas, as mortgagee, against Mary Raymond, as mortgagor, with a view to ascertaining the amount due on the sealed note, dated August 25, 1863, secured by the mortgage. The order runs as follows: " Ordered and decreed, that it be referred to the Commissioner to ascertain the amount due on the sealed note, reduced to two thousand five hundred dollars, and that all payments of interest in Confederate money be reduced in the same proportion, and that the parties be at liberty, at the foot of this decree, to take such orders as may be necessary to carry the same into exection by foreclosing the mortgage, or otherwise." The effect of this decree was to reduce the nominal amount of the sealed note to conform to some idea of the relative value of Confederate currency and legal money in the mind of the Chancellor, but not disclosed by his decree. From this decree the plaintiff appealed to the Court of Appeals. The appeal was dismissed by the Court of Errors, to which Court it was referred, and the order appealed from affirmed. It does not appear that at this stage of the case the defendant, Mary Raymond, objected to the decree, but, on the contrary, it may be assumed that she demanded and obtained its affirmance by the appellate Court. Subsequent to the affirmance of this decretal order, the amount due upon the mortgage was ascertained by a report of the Commissioner, confirmed by a decree of Chancellor Carroll. The decree of Chancellor Carroll was final and complete, as a decree of foreclosure, and bears date January 22d, 1868. It adjudges the amount due on the note and mortgage, orders the sale of the mortgaged premises, declares that such sale shall bar the equity of redemption, directs the mode of distributing the proceeds of the sale, and awards execution for any deficiency that may exist on such sale.
It does not appear that any appeal was taken from this decree, or any steps taken to vacate or modify it. This decree is, in form a final decree,...
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