Wylie v. Lipsey , 31 S.C. 608 ( 1889 )

Opinion by

Mr. Justice McIver,

In action for foreclosure of a mortgage, the complaint was not so framed as to call for or warrant any adjudication of the nature or extent of the mortgagor’s interest in this land; but others, parties, were permitted to come in, who claimed an interest therein. The Circuit Judge (Hudson) passed upon those interests, and held that the mortgagor had'a mortgageable interest, but that the mortgage could not affect the fee nor disturb the trusts, but that her beneficial interest, present and contingent, is all that could be mortgaged. The additional defendants appealed, claiming a more extensive interest than that which the Circuit decree declared. Held, that the Circuit Judge was correct in' passing upon the right of the mortgagor to execute a mortgage, but having reached that conclusion (from which there is no appeal), the nature and extent of the mortgagor's interest were not material to any issue raised in the pleadings, and their adjudication now would be premature. Whatever the interest was that the mortgagor had,, that interest only will be sold under the decree of foreclosure. Judgment affirmed without prejudice.