Greenwood Loan & Guarantee Ass'n v. Williams

• Decision Date: 18 April 1905
• Citation: 71 S.C. 421,51 S.E. 272
• Court: South Carolina Supreme Court
• Parties: GREENWOOD LOAN & GUARANTEE ASS'N. v. WILLIAMS et al.

71 S.C. 421

51 S.E. 272

GREENWOOD LOAN & GUARANTEE ASS'N.

v.WILLIAMS et al.

Supreme Court of South Carolina.

April 18, 1905.

1. Mortgage — Foreclosure — Service of Process.

Where the court has determined that there is a defect of parties on foreclosure, service of amended summons and complaint on a necessary party is sufficient, without rule to show cause to bring him in.

2. Same—Jurisdiction—Nonresident Mortgagor.

Under Code Civ. Proc. § 156, the court, by proceedings to foreclose and the filing of a lis pendens, has jurisdiction, though the mortgagor was a nonresident, where the subject of the action was real property in the state.

3. Same—Amendment of Pleadings — New Party.

A summons and complaint in foreclosure may be amended, where the mortgagor is a nonresident, by adding a new party in possession of land, and the action may be continued against such party alone where no personal judgment is sought against the mortgagor.

4. Same—Supplemental Complaint.

Where, in foreclosure, a supplemental complaint was necessary because of a conveyance of the premises by the mortgagor before suit, the mortgagee having no notice thereof until suit brought, service of amended summons and complaint making the purchaser a party may be authorized by the court.

5. Appearance—Effect.

Where defendant makes a general appearance, he waives an objection that the court has no jurisdiction of his person.

6. Foreclosure — Vacating Sale—Bid of Purchaser.

Where a foreclosure sale is vacated, the bid of the purchaser at such sale should not be credited on the mortgage debt.

Appeal from Common Pleas Circuit Court of Greenwood County; Leroy F. Youmans, Special Judge.

Action by the Greenwood Loan & Guarantee Association against Hattie Williams and Rhoda Chiles. Judgment for plaintiff, and defendants appeal. Affirmed.

Ellis G. Graydon, for appellants.

Caldwell & Park, for respondent.

JONES, J. On May 3, 1900, the defendant Hattie Williams executed bond to plaintiff, and mortgage to secure same on a lot in Greenwood, S. C. On March 4, 1901, Hattie Williams conveyed the mortgaged lot to defendant Rhoda Chiles, which deed was recorded May 28, 1901. Several days previous to the recording of said deed, i. e., May 22, 1901, plaintiff brought action against Hattie Williams to foreclose said mortgage, without making Rhoda Chiles a party thereto. Lis pendens was not filed until July 8, 1901. Hattie Williams, being a nonresident, was served with summons by publication, but she made no answer or appearance, and judgment of foreclosure was rendered at August term, 1901, the land sold thereunder for $250 to plaintiff, and deed w^Tas executed by the master. The plaintiff thereafter brought action against Rhoda Chiles to recover the possession of the lot, and procured an order appointing a receiver of rents and profits pendente lite, from which an appeal was taken. Upon the facts stated, this court reversed said order; holding that Rhoda Chiles, having the legal title, was a necessary party in an action to foreclose said mortgage. Association v. Childs, 67 S. C. 251, 45 S. E. 167. The action by plaintiff to recover the land of Rhoda Chiles was discontinued, and plaintiff, upon application to the court, without notice to Hattie Williams or Rhoda Chiles, obtained an order vacating said judgment of foreclosure, and giving plaintiff leave to amend by making Rhoda Chiles a party defendant. The summons and complaint were amended in conformity with the order of Judge Dantzler on August 26, 1903: The amended summons and complaint were served upon Rhoda Chiles, and she appeared and made answer to the merits. The circuit court (Hon. Leroy F. You-mans, special judge, presiding) overruled all defenses, and gave judgment of foreclosure for $306.93, which included $50, as a reasonable attorney's fee.

The first three exceptions in behalf of appellant Rhoda Chiles question the jurisdiction of the circuit court (1) in making her a party to this action without notice and supporting affidavit; (2) because the court had never acquired jurisdiction of Hattie Williams, and therefore there was no action pending, and no authority to add another defendant; (3) the plaintiff should have proceeded by supplemental complaint. These objections to the jurisdiction cannot avail.

1. The decision of the court in Association v. Childs, supra, had determined that Rhoda Chiles was a necessary party to the foreclosure proceedings. As the circuit court needed no further information on that subject, there was no occasion to issue a rule to show cause or notice, with supporting affidavit, as is ordinarily the practice. All the ends of notice were fully subserved in this case by the service of the summons and complaint, pursuant to the...