Welborn v. Cobb

Decision Date13 September 1912
PartiesWELBORN . v. COBB et al.
CourtSouth Carolina Supreme Court

75 S.E. 691
(92 S.C. 384)

WELBORN .
v.
COBB et al.

Supreme Court of South Carolina.

Sept. 13, 1912.


1. Action (§ 50*)—Foreclosure—Parties.

Under Code Civ. Proc. 1902, § 188, providing that, where a mortgage debt is secured by the obligation of any third person, plaintiff may make such person a party to the action to foreclose, an assignee of a mortgage and notes secured thereby may, on the default of the mortgagor, sue in one action the mortgagor to foreclose the mortgage and the mortgagee on his guaranty of the payment of the debt.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 511-547; Dec. Dig. § 50.*]

2. Action (§ 38*)—Foreclosure — Cause op Action.

A complaint in an action by an assignee of a mortgage and the notes secured thereby against the mortgagor and the mortgagee, who guaranteed payment, which alleges the mortga gor's failure to pay the note first maturing, and that the whole debt became due pursuant to a stipulation of the mortgage; that by consent of the assignee the mortgagor had sold a part of the land and paid the proceeds on the debt, under an agreement that the same, though exceeding the amount then due on the notes according to their terms, should not affect the right to foreclose; that the mortgagor claimed the right to set off against the mortgage debt a specified sum for deficiency of the acreage of the tract conveyed by the mortgagee; and that to the extent of the shortage the consideration of the notes and mortgage had failed—states but one cause of action; and, though the allegations as to a deficiency in the acreage are not necessary to a cause of action, they are not entirely irrelevant, as they show that a shortage in the acreage impairs the validity of the notes and mortgage, so as to require the mortgagee to make good his guaranty.

[Ed. Note.—For other cases, see Action, Cent. Dig. § 549; Dec. Dig. § 38.*]

3. Mortgages (§ 415*)—Defenses—Failure of Consideration.

The equity of a purchase-money mortgagor, based on a shortage in the acreage of the land conveyed by the mortgagee, depends on a failure of consideration; and the mortgagor may obtain relief in a suit to foreclose the mortgage, and the misrepresentation of the mortgagee as to the acreage is available, either as a separate cause of action or as a defense in the foreclosure action.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1210-1224; Dec. Dig. § 415.*]

4. Jury (§ 13*)—Right to Jury Trial.

Where a defendant sets up as a defense to an equitable cause of action facts which grow out of that cause of action, or the transactions which gave rise to it, and which are so interwoven with it as to be inseparable from it, the defense is not triable by jury as of right.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 35-83; Dec. Dig. § 13.*]

5. Mortgages (§ 248*) — Foreclosure — Maturity of Debt.

A stipulation, in a mortgage securing notes, that on the nonpayment of any note at maturity the whole debt shall become due, is for the benefit of the mortgagee or his assignee: and where the mortgagee has assigned the mortgage and notes the assignee alone may enforce or waive his rights under the stipulation, and the mortgagee, assigning the mortgage and notes and guaranteeing the payment thereof, is liable on his guaranty, where the whole debt becomes due by the failure of the mortgagor to pay the first note at maturity, though thereafter the assignee accepts from the mortgagor more than is due on the first note under the agreement that he will not waive his right to foreclose.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. § 659; Dec. Dig. § 248.*]

6. Appeal and Error (§ 213*)—Trial—Submission of Issues to Jury.

Where, in a suit in equity, the court submitted to the jury issues prepared by plaintiff's attorney, and notice of the proposed submission was served on defendant's attorneys, defendant could not complain because the court submitted on its own motion other issues, in the absence of any objection at the time, or a refusal of request to be heard.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 213.*]

7. Mortgages (§ 486*)—Foreclosure—Judcment.

Where the complaint in foreclosure of a purchase-money mortgage and to enforce the

[75 S.E. 692]

guaranty of the mortgagee, assigning the mortgage and notes, prayed for a reference to ascertain the amount due, and there was a finding of deficiency in the quantity of the land sold, and the court abated the amount due under the mortgage by the amount of the deficiency, and gave judgment against the mortgagor for the balance, with the right to foreclose, and against the mortgagee for the amount of the deficiency, the judgment was not assailable by the mortgagee, who did not object in the trial court to final judgment, nor ask for a reference, or opportunity to offer further evidence.

[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 1404-1411; Dec. Dig. § 486.2-*]

8. Indemnity (§ 9*)—Assignment—Warranty.

A mortgagee assigned a mortgage and the notes secured thereby by an assignment stipulating that the notes should be indorsed without recourse. An...

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