Varser v. Smith
| Decision Date | 01 June 1938 |
| Docket Number | 14699. |
| Citation | 197 S.E. 394,187 S.C. 328 |
| Parties | VARSER et al. v. SMITH et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Chesterfield County; E. C Dennis, Judge.
Mortgage foreclosure proceedings by L. R. Varser, and others against Thomas L. Smith, Mrs. Mattie L. Smith, and others. From a denial of a petition to set aside a second decree entered without notice after decree of foreclosure last-named defendant appeals.
Reversed and remanded.
J. K Owens, of Bennettsville, for appellant.
Andrew J. Bethea, of Columbia, for respondents.
On October 1, 1930, the appellant, Mrs. Mattie L. Smith executed and delivered to Varser, Lawrence and McIntyre, a copartnership, a mortgage covering a house and lot in the town of Cheraw, to secure the sum of $600.00, with interest. Thereafter, a foreclosure proceeding was commenced by the mortgagees against Mrs. Mattie L. Smith, wherein judgment for the amount due on the mortgage was demanded, and demand was also made for a decree for foreclosure and sale. Henry A. Rogers, Clerk of Court of Marlboro County, and Andrew J. Bethea, being judgment creditors of the appellant, were joined as defendants in the action. The cause was heard by his Honor E. C. Dennis, Judge of the Fourth Judicial Circuit, who issued his decree of foreclosure under date of July 5, 1935.
In determining the priority of the parties, the trial Judge found that the judgment of Henry A. Rogers constituted a first lien upon the property described in the mortgage; that the plaintiff's mortgage constituted a second lien thereover, and that the judgment of Andrew J. Bethea constituted a third lien. The decree provided that the proceeds to be derived from the sale should be disbursed in accordance with these priorities, after the payment of certain taxes and costs; that the officer conducting the sale should require the successful bidder to make a cash deposit of three per cent. of the total indebtedness adjudged to be due to the plaintiffs, as evidence of good faith; and further provided that, "although the defendant, Mattie L. Smith, has not applied for a homestead, this is not a waiver thereof and the same is allowed in these proceedings and will be a bar to any claims for homestead on the part of this defendant at any other time."
By a supplemental order, made upon her ex parte application, Mattie L. Smith was given the right to assume the bid and to redeem the property at any time within sixty days after the sale. There was no appeal from this decree or the supplemental order by any of the parties.
Under the foreclosure decree, the property was offered for sale, on October 7, 1935, and was bid in by Andrew J. Bethea.
On the day before the expiration of the sixty-day period during which the bid was held open, to give the appellant, Mattie L. Smith, the privilege of redeeming the property, the dwelling house thereon was destroyed by fire. This house had been insured by the plaintiffs, the mortgagees, for their protection, and sufficient insurance was collected on the policy to pay the mortgage debt due them.
Thereafter, on July 7, 1936, Andrew J. Bethea appeared before his Honor, Judge Dennis, at his Chambers, upon an ex parte petition, alleging that it was impossible either for the master or for the petitioner to carry out the condition of the sale, upon the ground that the dwelling house on the lot had been destroyed by fire; and praying for an order directing a resale of the lot of land. Upon consideration of this petition, Judge Dennis issued another decree, of date July 7, 1936, directing a resale of the property by the Master for Chesterfield County. In this decree it was ordered that the proceeds to be derived from the sale, after the payment of the costs, taxes and assessments against the land, be applied to the payment of petitioner's judgment, and any other judgment liens, in the order of their priority. The decree contained the further provision that upon sale of the premises, all right, title, interest and equity of redemption of the defendant therein be forever barred. Pursuant to this second decree, the Master re-advertised the property for sale on August 3, 1936, and it was again bid in by Andrew J. Bethea, who, having complied wth his bid, was given a deed for the premises by the Master.
The appellant, Mattie L. Smith, was not served with notice of the petition presented to Judge Dennis by the judgment creditor, Mr. Bethea, and had no notice of the second decree, or of the resale of the lot other than such constructive notice as she might have derived from the advertisement of sale which appeared in the newspaper. The record shows that she had been absent from the State for a year or more, and it does not appear that any effort was made to ascertain her address.
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