Dendy v. Waite

• Decision Date: 08 September 1892
• Citation: 36 S.C. 569,15 S.E. 712
• Parties: Dendy v. Waite et al.
• Court: South Carolina Supreme Court

15 S.E. 712

36 S.C. 569

Dendy

v.Waite et al.

Supreme Court of South Carolina.

Sept. 8, 1892.

m.obtoa8es—power op sale—execution—deed —Reformation—Appeal.

1. To render the execution of a power of sale contained in a mortgage valid, the deed of sale must be signed in the name of the mortgagor.

2. Such deed signed in the name of the mortgagee cannot be reformed in an action to foreclose a subsequent mortgage, in which action the mortgagee in the prior mortgage and his grantee are parties.

3. The proceeds of the foreclosure of such subsequent mortgage were properly applied — First, to the costs of foreclosure and taxes; second, to the amount due on the prior mortgage, and the balance to the mortgage being foreclosed.

4. A ground of appeal because the court "erred in not holding that plaintiff could not maintain this suit against defendants, appellants, " is too general to be considered.

Appeal from common pleas circuit court of Abbeville county; Withekspoon, Judge.

Action by Lula Dendy against W. F. Waite, F. A. Connor, and Mitcheil Gog-gins. From a judgment of for closure in favor of plaintiff, defendants Connor and Goggins appeal. Affirmed.

Benet & Cason, for appellants.

Ball & Watts and De Brubl & Bradley, for respondent.

Pope, J. In January, 1884 one E. G. Dendy, as the owner of a tract of land containing 68 acres, situated in Abbeville county, in this state, mortgaged the same to Francis A. Connor to secure a debt of $213, and of this debt Dendy paid the one half thereof. In September, 1S84, E. G. Dendy sold this land to one W. F. Waite, at the price of $475, secured to be paid by 3 notes, each for $158.33 1/2, and secured by a mortgage of the premises. Only a part of one of said notes was paid. Both the foregoing mortgages were duly recorded On the 20th July, 1886, E.G. bendy, for value, assigned the three notes and mortgage given to him by W. F. Waite to the plaintiff, Lula Dendy. Francis A. Connor, under a power in the mortgage, sold at public auction, after due advertisement, the tract of mortgaged land on the first Monday of January, 1887, at the price of $115, to himself as the highest bidder, and by deed to himself conveyed said land, signing said deed, "Francis A. Connor, Mortgagee, " without any seal. In the spring of 1887, F. A. Connor sold and conveyed said tract of land to the defendant Mitchell Goggins at the price of $300, on credit. About &200of this purchase money has been paid. Mortgage secures the amount still due. Mitchell Goggins has been in possession of said lands since the spring of 1887 to the present time. The present action has been brought by Lula Dendy to foreclose the mortgage she holds thereon, to which the said W. F. Waite, Francis A. Connor, and Mitchell Goggins have been made parties defendant, as having or claiming some interest in such mortgaged lands. The defendant W. F. Waite did not answer. The defendant Francis A. Connor answered, setting up the facts herein recited, and claiming that, if there were any defects or omissions in the deed he made to himself, he should now be allowed to correct the same; that the sale made by him was valid by reason of the power contained in the mortgage of Dendy to himself; and that the plaintiff has no right to maintain this action of foreclosure. The defendant Gogginsanswered, adopting the answer of Francis A. Connor as his own.

By consent of the parties to the action, all the issues of law and fact were referred to.1. C. Klugh, as master. On the coming In of the master's report, all parties duly excepted thereto. The same came on to be heard by his honor, I. D. Witherspoon, and on the 1st September, 1891, his decree was filed. In his decree, among his findings of fact, were that the mortgage held by F. A. Connor for $172.09, with interest from 22d January, 1891, on E. G. Dendy, was still subsisting and unpaid, and was a prior Hen to that of the plaintiff for $536.18, with interest from 22d January, 1891. Among his conclusions of law, that the mortgage held by Francis A.Connor has not been satisfied; that the mortgage held by plaintiff should be foreclosed; that, from the proceeds arising from the sale of the lands by the master, he should —First, pay all the costs of this action, to be hereafter taxed by the clerk of court for Abbeville, and any taxes due on the land; second, the judgment of Francis A. Connor for $172.09 and interest; and, third, the judgment of plaintiff, etc.

From this decree the defendants Francis A. Connor and Mitchell Goggins have appealed to this court, on the following grounds: (1) Because his honor erred in holding that the sale and attempted conveyance did not pass the title to the premises, to such an extent, at least, as to protect the defendants from any action by the plaintiff for foreclosure. (2) Because he erred in holding that the attempted conveyance by the defendants to himself cannot be supplied or corrected. (3) Because he erred in confirming the master's first finding of fact, that the sale and attempted conveyance by Mr. Connor-were not effectual to pass the legal title to the land. It is submitted that this is a question of law, and not of fact. (4) Because he erred in holding that the plaintiff was entitled to a judgment of foreclosure against W. F. Waite, and directed that the mortgaged premises should be sold. (51 Because he erred In holding that the proceeds should be applied to the payment of all the costs of this action first. (6) Because he erred in not holding that plaintiff could not maintain this suit against the defendants, appellants. (7) Because he erred in not holding that any defect in defendants' deed could be corrected nunc pro tunc.

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