Walker v. Covar
| Citation | 2 S.C. 16 |
| Parties | C. BRUCE WALKER v. LEWIS COVAR AND OTHERS. |
| Decision Date | 28 June 1870 |
| Court | United States State Supreme Court of South Carolina |
On the 1st January, 1857, C. gave a mortgage of lands and slaves to secure the payment of a debt. The mortgage was duly recorded and C. afterwards sold the lands. On the 4th March, 1861, the Sheriff, under executions against C., some senior and some junior to the mortgage, sold one of the mortgaged slaves for a sum sufficient to satisfy the senior executions and the balance of the mortgage debt. On bill to foreclose against C and the purchasers of the land, held , that the mortgage debt was not satisfied by the sale made by the Sheriff.
Held, further , That a purchaser of part of the lands had no equity, in 1868, to compel the holder of the mortgage to resort to his claim against the Sheriff before enforcing his lien upon the lands.
The purchaser's remedy was to pay the mortgage debt, and be subrogated to the rights of the mortgage creditor- semble .
The rule that a creditor having a lien on two funds may be compelled to resort, in the first instance, to the one on which the subsequent claim of another does not attach, is never applied where injustice may be done to the prior creditor as, for instance, where the fund to be resorted to is dubious, or is one which can be reached only by litigation.
BEFORE JOHNSON, CH., AT EDGEFIELD, JUNE, 1868.
On the 1st January, 1857, the defendant, Lewis Covar, gave to George A. Addison a mortgage of a lot in Edgefield village and some slaves, to secure the payment of three promissory notes for $1,000 each, payable in one, two and three years, with interest. There were on the lot a hotel, some stables, and three law offices. The mortgage was recorded the next day and, on the 13th June, of the same year, it was assigned by Addison to the plaintiff. Some time in 1857, Covar sold the law offices to George W. Landrum, deceased; and, about the same time, he agreed, for valuable consideration actually paid, to sell the rest of the lot, with the hotel and stables, to Mrs. Susan Ann Bulkeley, then a widow, and gave her a bond, conditioned to make title. On the 4th March, 1861, the Sheriff of Edgefield sold, under executions against Covar, some of which were older and some younger than the mortgage, one of the mortgaged slaves. Before this sale, the greater part of the mortgage debt had been paid, but there remained a balance thereof, then due, amounting, with interest, to about $500. The slave was sold for $1,120, and this sum satisfied the executions against Covar, which were older than the mortgage, and left in the Sheriff's hands a balance of $600, and upwards, more than sufficient to satisfy the amount of the mortgage debt then due and unpaid.
The Bill in this case was filed to foreclose the equity of redemption, and for a sale of the land to satisfy the mortgage debt. Besides Covar, the heirs of Landrum and Mrs. Bulkeley, with her husband, were made parties defendant.
Mrs. Bulkeley alone defended the suit. Her answer was filed in May, 1868, and the principal grounds of her defense were substantially as follows: (1) That the sale by the Sheriff satisfied the balance then remaining of the mortgage debt; (2) that the plaintiff was barred of his remedy against the land by his laches in not pursuing the fund in the Sheriff's hands; or, at any rate, (3) that the plaintiff should be compelled to go upon the Sheriff for payment before enforcing his lien upon the land.
The facts of the case, in reference to the sale by the Sheriff, the balance in his hands, and the amount of the mortgage debt, were stated in the report of a Referee, and the case was heard on that report and exceptions thereto by Mrs. Bulkeley.
His Honor the Chancellor overruled the exceptions, and made a decree of foreclosure, directing the lands to be sold on the first Monday in October, 1868.
The defendant, Mrs. Bulkeley, appealed, and now moved this Court to reverse or modify the decree of the Chancellor, on the grounds:
First. That the money arising from the sale of the personal property in said mortgage, on the 4th March, 1861, by the then Sheriff of Edgefield District, was more than sufficient to satisfy the balance then due upon said mortgage.
Second. That the money arising from the sale of said personal property, after satisfying the senior judgments, belonged to C. Bruce Walker, assignee; and that he alone could sue for said funds; and that said defendant could, in no way, control the same.
Third. That after satisfaction of said mortgage, on the 4th day of March, 1861, by the sale of said personalty, the mortgage ceased, by the operation of law, to bind the realty, and should have been marked satisfied at that date.
Fourth. That, by the laches of the complainant, the funds arising from the sale of said mortgaged property have not been properly applied, and that it is in violation of law and equity to make the defendant liable for such neglect.
Gary , for appellant.
Bonham , contra.
The principles which govern the relative rights of creditors claiming under mortgages and judgments against the same debtor, have been so fully adjudicated by the Courts of this State, and are so well understood, that no reference is necessary to the particular c...
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