Groce v. Jenkins

• Decision Date: 05 March 1888
• Citation: 5 S.E. 352,28 S.C. 172
• Parties: GROCE v. JENKINS et al.
• Court: South Carolina Supreme Court

5 S.E. 352

28 S.C. 172

GROCE v. JENKINS et al.

Supreme Court of South Carolina

March 5, 1888

Appeal from common pleas circuit court of Greenville county; A. P ALDRICH, Judge.

Action to foreclose a mortgage by A. B. Groce, appellant, against W F. Jenkins and Ignatius F. Reese. The complaint was as follows: "The complaint of the above-named plaintiff respectfully shows to the court as follows: (1) That on the twelfth day of September, 1879, one James L. Ballenger executed to plaintiff his three several notes, all bearing date of that day, one for three hundred and sixty 59-100 dollars, payable January 1, 1881; one for three hundred and ninety-two 57-100 dollars, payable January 1, 1882; and one for four hundred and twenty-four 66-100 dollars, payable January 1, 1883, -all bearing interest from their date. (2) That the said James L. Ballenger, on the twenty second day of February, 1881, to secure payment of said three notes executed and delivered to plaintiff a deed, and thereby conveyed by way of mortgage to plaintiff, his heirs and assigns, the following lands and tenements situate in the said county of Greenville, to-wit, a certain piece or parcel of land lying and being in Greenville county and state aforesaid, on the south side of Tyger river, containing one hundred and twenty-five 7-10 acres, more or less, being the tract whereon the said James L. Ballenger then lived, and a part of the Westley Gilreath lands. (3) That on the twenty-sixth day of February, 1881, the said mortgage was delivered to the register of mesne conveyance for said county, to be by him recorded, and was on that day recorded. (4) That on the third day of December, 1881, the said mortgage being unpaid and unsatisfied, the said James L Ballenger sold and conveyed seventy-five acres of said land to the defendant W. F. Jenkins, as follows: 'A certain piece or parcel of land lying and being in Greenville county and state aforesaid, and being a part of the tract whereon I now live, it being a part of the Westley Gilreath tract, lying on both sides of Clear creek, waters of South Tyger river, beginning on the south side of South Tyger river, on a black gum, (gone;) runs thence S., 7 W., 38.92, to a stone; thence N., 82 W., 5.70, to a stone; thence S., 17 E., 12.35, to a stone; thence S. 82 W., 11.28, to a stone, thence N., 32 1/2 W., 23.40, to a stone; thence N., 48 1/2 E., 42.91, to the beginning, -containing seventy-five acres, more or less, bounded by lands of W. C. Cleveland, F. M. Holtzclaw, and others.' And on the thirty-first day of December, 1881, the defendant W. F. Jenkins, in part payment of the purchase money, executed to the plaintiff his note for three hundred dollars, with interest from date, payable seventy-five dollars in two years from the date thereof, seventy-five dollars and the interest in three years, and the balance in four years; and said note was substituted for a corresponding amount of indebtedness of the said James L. Ballenger to the plaintiff under the mortgage aforesaid; the intention, understanding, and agreement of all the parties being that said mortgage should stand as security for the substituted note to the extent of the land conveyed by said Ballenger to said Jenkins. (5) That on the third day of March, 1884, the said defendant W. F. Jenkins executed a mortgage on said seventy-five, acres of land to the defendant Ignatius F. Reese, to secure a debt of one hundred and ninety-four 35-100 dollars, payable one-half November 1, 1884, and one-half November 1, 1885. (6) That the conditions of said substituted note and of said mortgage to plaintiff have been broken, and there remains due and unpaid upon said note and mortgage the sum of three hundred and four 96-100 dollars, with interest from the twenty-eighth day of August, 1886. Wherefore plaintiff prays judgment that said mortgage to plaintiff be foreclosed, and the equity of redemption barred, the premises ordered to be sold, -that is, so much thereof as is covered by the deed to said Jenkins, -- and the proceeds applied to the payment of the mortgage debts, and execution awarded for the balance against the defendant W. F. Jenkins; and for such other and further relief as may be meet and proper."

Wells, Orr & Morgan, for appellant.

Westmoreland & Dorroh, for respondents.

MCGOWAN J.

This was an action to foreclose a mortgage. The complaint, among other...