Citizens Bank v. Davis ( 1925 )

I think that the modification of the decree of foreclosure by this Court, by the opinion found in 126 S.C. 175; 119 S.E., 580, was too trivial to deprive the opinion of its character as an affirmance of the decree; it amounted to a substantial affirmance; therefore the defendants are liable upon their appeal bond.

The facts in the main cause are set forth in the opinion above referred to and need not be here repeated. It is sufficient to say that the action was for the foreclosure of certain mortgages, to which the defendants mortgagors set up various defenses, none of which were sustained by the trial Judge, who decreed a foreclosure and sale of the premises. The defendant appealed to this Court upon exceptions which raised certain questions, none of which were sustained by the Court except those which suggested error in allowing the attorneys for the mortgagee 5 per cent. commissions or fees upon the purchase price of the property, instead of upon the amount due upon the mortgage, and directing that the surplus proceeds of sale be paid to the mortgagee or its attorneys, instead of directing that after the payment of the costs and expenses the residue of the proceeds of sale be applied to the plaintiff's mortgage and the balance if any be paid to the mortgagor.

As the Court observes: "These directory provisions of the decree were obviously inserted under the assumption that the land would not bring the amount of the mortgage debt" — an assumption which subsequent events have justified.

In order to prevent an immediate sale of the property, the defendants executed the appeal bond which has been sued upon in this case. The bond obligates the makers not to "commit or suffer to be committed any waste to or upon or in respect to the said property during the pendency of the said appeal and their possession thereof, and that if the judgment be affirmed they will pay to the plaintiff the value of the use and occupation of the said property from the date of this undertaking until the delivery of possession thereof pursuant to the judgment."

The main object of the appeal was to reverse the decree of foreclosure, which would prevent a sale and delivery of the possession of the property from the owners to the purchaser at such sale. In this the appellants failed. The heart of the bond was that if they failed in this object they would pay to the mortgagee rent in the meantime.

I think that they should be required to respond to the spirit of their obligation, and not slip through the meshes of the law upon directory errors which as events have shown did not make the slightest difference to them.