Rosenberg v. Lewi
| Decision Date | 07 June 1876 |
| Citation | 7 S.C. 344 |
| Parties | ROSENBERG v. LEWI. |
| Court | South Carolina Supreme Court |
There can be no claim of homestead against a mortgage of the property in which the claim is made.
As a general rule, counsel fees of others than the mortgagee are not, it seems, payable out of the proceeds of the sale of mortgaged property in proceedings for foreclosure.
BEFORE COOKE, J., AT ABBEVILLE, JANUARY, 1876.
This cause was heard upon a statement of the case, which is as follows:
On the 22d day of February, 1871, Garrison A. Visanska, one of the defendants, mortgaged to H. K. Thurber & Co. a tract of land in the County and State aforesaid, containing 1,050 acres, known as the Belcher plantation, as security for a debt of $2,000 which he owed them. The mortgage was subsequently duly assigned by H. K. Thurber & Co. to David Lewi.
David Lewi commenced his action to foreclose the mortgage against Garrison A. Visanska on the 8th of April, 1874, and on the same day filed a notice of the pendency of the action in the office of the Clerk of the Court of Abbeville County. The summons and complaint were served on Garrison A. Visanska by the Sheriff on the 13th day of April, 1874. The complaint of David Lewi was answered by Garrison A. Visanska and several defenses were pleaded.
The cause was heard before his Honor Judge Carpenter, sitting for Judge Cooke, and a judgment of foreclosure was signed and entered on the 23d day of April, 1875, ascertaining the debt secured by the mortgage to be $2,037.94, besides costs, and the mortgaged premises ordered to be sold for cash on sale day in November, 1875, and the debt paid out of the proceeds. The equity of redemption of the said Garrison A. Visanska and of all persons claiming under him was foreclosed and the mortgaged premises advertised for sale under the judgment. On the 14th day of April, 1874, the day next after the personal service of the summons and complaint on Garrison A. Visanska he made a deed of conveyance of the Belcher plantation and a tract of land on Little River in said County, but of no other property, to the respondent, Wolf Rosenberg, for his creditors. The tract on Little River had been mortgaged by Garrison A. Visanska to Morris Israel as security for a debt due to him. After the execution of the mortgages several judgments had been obtained against Garrison A. Visanska some of them before and some after the conveyance. In the deed of conveyance to Wolf Rosenberg, Garrison A. Visanska claimed a homestead in the Little River tract of land, if he should be entitled by law to the same, but made no claim of homestead in Belcher plantation. On the 19th day of April 1875, Wolf Rosenberg filed in the office of the Clerk of Abbeville County his complaint against the appellants, David Lewi, Morris Israel, certain judgment creditors, Anna R Visanska and Garrison A. Visanska, setting forth the conveyance of Garrison A. Visanska to him; that the Belcher plantation had been mortgaged by Garrison A. Visanska to H. K. Thurber & Co., and by them assigned to David Lewi; that the Little River tract of land had been mortgaged to Morris Israel, and that judgments against Garrison A. Visanska had been obtained after the making of the mortgages by him; and further alleging that Anna R. Visanska preferred a claim arising out of an alleged marriage contract between her and her husband, Garrison A. Visanska. The complaint of Wolf Rosenberg admits the validity and priority to the judgments of the mortgage held by David Lewi, but alleges that the amount of the debt secured by it is unknown to him; alleges that Garrison A. Visanska claims a homestead in the Little River tract, and that plaintiff is in doubt and perplexity as to the claim of Anna R. Visanska, that of Garrison A. Visanska to homestead and the alleged mortgage to Morris Israel. The complaint demands an injunction restraining the appellant from selling the land to foreclose his mortgage and judgment creditors from selling the lands until these claims last mentioned shall be decided. On the 15th day of October, 1875, the order for injunction was made. The cause came to a hearing before his Honor Judge Cooke, January Term, 1876. The complaint was answered by David Lewi, 13th November, 1875; Garrison A. Visanska failed to answer. On the hearing there was no evidence that Garrison A. Visanska had ever resided on the Belcher plantation, and he admitted that he had never done so. And in reply to a question by the Court, Visanska said he would take his homestead in the Belcher plantation, and was told by Judge Cooke that he must act upon his own judgment. It was proved that the Belcher plantation was ten miles from any residence of Garrison A. Visanska. The Belcher plantation and the tract on Little River are both mentioned in the judgment of the Circuit Court, which decides that Garrison A. Visanska is entitled to homestead, and, further, " that he is at liberty to select his homestead and have it taken from the lands above named," and directed the Sheriff to lay it off according to law in said lands. The judgment dissolved the injunction and ordered that the Belcher plantation should be sold for one-half of the purchase money in cash, and the other half on a credit until the 1st of January next, and did not exact of the purchaser any security or bond for the same.
David Lewi appealed from so much of the judgment of the Circuit Court, entered February 4, 1876, as adjudges that the co-defendant, Garrison A. Visanska, is entitled to a homestead in the Belcher tract of land and in the tract on Little River, mentioned in said judgment, and is at liberty to select his homestead in them and to have it laid off from them, and orders the Sheriff to lay off his homestead in said tracts of land.
Also, from so much of said judgment as orders the Belcher tract of land to be sold for one-half of the purchase money in cash and the other half on a credit until the first day of January, 1867, without requiring security for the same, whereas the judgment of foreclosure entered on the 23d day of April, 1875, in the action of David Lewi against Garrison A. Visanska directed that the Belcher tract be sold for cash.
Also, from so much of said judgment as requires the Referee therein appointed to report out of what fund the counsel fee of the attorney of Wolf Rosenberg, the plaintiff, shall be paid, and will move to reverse the said judgment in these particulars.
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