Rice v. Mahaffey
| Decision Date | 09 March 1878 |
| Citation | 9 S.C. 281 |
| Parties | RICE v. MAHAFFEY. |
| Court | South Carolina Supreme Court |
In an action for foreclosure a final judgment was entered for plaintiff by consent, and shortly thereafter defendant commenced an action against plaintiff to enjoin the sale alleging equitable grounds of relief, and the Circuit Judge without notice to plaintiff, granted an order to enjoin the sale. On appeal, the action to enjoin the sale and all proceedings therein were set aside, the Court holding that they were unauthorized, irregular and void.
A defendant in an action must plead all his defenses, whether legal or equitable. He cannot allow judgment to be entered against him and then commence a separate action against plaintiff alleging an equitable defense and praying for an injunction. The judgment estops him from setting up any matter which could have been pleaded in the first action.
An order to enjoin a decree for sale of mortgaged premises cannot be made without four days' notice, as the 78th rule of the Circuit Court requires.
BEFORE NORTHROP, J., AT LAURENS, NOVEMBER, 1876.
The case is as follows:
In December, 1869, Sanford B. Mahaffey became the purchaser of a tract of land lying in the County of Laurens, which was sold by Ira W. Rice, as Clerk of the Court, for partition between the heirs of William Hunter, and gave bond and mortgage to secure the payment of the purchase money. In May, 1875, suit was brought in the name of Rice, as plaintiff, against Mahaffey to foreclose the mortgage. Mahaffey answered the complaint, and alleged, amongst other defenses, that the question of title to the land was in litigation in the United States District Court in a case there pending between the creditors of Willis Cheek, a bankrupt. The issues in the cause were then referred to a Referee, and upon the coming in of his report a decree for foreclosure and sale of the mortgaged premises was made, with the consent of Mahaffey's attorney. A few days afterwards Mahaffey commenced this action against Rice, setting forth in his complaint the pendency of the suit in the United States District Court for recovery of the possession of the mortgaged premises and praying for an injunction to restrain the sale and for a review of the facts of the case. And thereupon, without notice to the plaintiff Rice, His Honor Judge Northrop made an order to restrain the sale under the decree for foreclosure.
The plaintiff, Rice, appealed on the grounds, amongst others: 1st. That the Circuit Judge erred in enjoining a decree made by consent. 2d. That there was error in enjoining the decree of foreclosure without four days' notice, as directed by the 75th rule of the Court.
Pope & Watts , for appellant.
Ball , contra.
When the Courts of law and equity were separate and distinct it was sometimes allowable for a bill to be filed in chancery by the defendant in an action at law against the plaintiff to dispose of some equitable question arising in the matter between them,-and ad interim to restrain the proceeding at law.
By the Constitution, Article IV, Section 16, the Court of Common Pleas now has...
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