Dickerson v. Cleland , 120 S.C. 221 ( 1922 )

July 6, 1922. The opinion of the Court was delivered by This is an action for claim and delivery. The cardinal facts are few and undisputed. G.W. Burdett executed a chattel mortgage to the appellant on two horses. Subsequently he executed a mortgage to the respondent. The appellant, the owner of the senior mortgage, foreclosed his mortgage, and at the foreclosure sale the two horses were sold together. The respondent was present at the sale, made no objection to the sale of the two horses together, but did at the sale. The appellant bid in the horses, being the highest bidder. Some time after the sale, the respondent offered to pay to the appellant the mortgage debt and the cost of foreclosure and sale. This offer was refused. The respondent brought this action under his second mortgage to recover possession of the horses, and both magistrate and Circuit Judge gave judgment in favor of the second mortgagee. The first mortgagee appeals.

I. In Martin v. Jenkins, 51 S.C. 43, 27 S.E., 948, we find:

"After breach of the condition of a mortgage of personal property, the legal title to the property mortgaged becomes vested in the mortgagee, subject only to the right of the mortgagor to redeem before sale, or, after sale, to an accounting in equity for the surplus, if any, over the debt secured by the mortgage."

The junior mortgagee can have no higher right than the mortgagor.

II. Objection is made to the sale of the two horses at once; i.e., as a pair. The respondent was present at the sale, made no objection to the method, and actually bid on them. All parties are estopped.

No other question need be considered.

The judgment is reversed.