Lowndes v. Fishburne

June 27, 1904. The opinion of the Court was delivered by This action was brought to recover a money judgment on defendant's bond given for the purchase of land and secured by a mortgage of the land. By consent, the cause was referred to the master, who reported that since the commencement of this action, the mortgaged premises had been sold by order of the Court; and after crediting the portion of the proceeds of sale applicable to the bond held by the plaintiff, he found a deficiency of five thousand two hundred and fifteen 8-100 dollars. In the report are numerous other findings of fact involving the defenses set up by the defendant. This report was confirmed by the Circuit Court. Being a law case, these findings of fact are conclusive and not subject to review by this Court. Blackwell v. McNinch, 67 S.C. 544. Referring to the master's report for a statement of the facts, we proceed to the consideration of the questions of law raised by the exceptions.

The original action for foreclosure of Smith, trustee of the plaintiff and others interested in the mortgage, against Fishburne, in which judgment was demanded for any deficiency after sale of the mortgaged property, was, by consent of the defendant, discontinued as of November term, 1889, and hence cannot be regarded pending September 10, 1890, when this action was commenced, and was, therefore, no bar to this action.

In answering the original suit for foreclosure of the purchase money mortgage, the defendant, Fishburne, set up a deficiency of seventy-seven acres of land. All questions involved in that action must be regarded settled by the contract of November 6, 1889, by which, as the master finds, "it was agreed that those proceedings for foreclosure were to be withdrawn, and that the defendant, Julian Fishburne, was to execute and deliver to Messrs. A.M. Lee and H.A.M. Smith, a deed of conveyance of the property in question; and if Mr. Fishburne did not settle all amounts then due for the property on the 17th February, 1890, Messrs. Lee and Smith were to sell the property, and after applying the proceeds to all costs and expenses, then to apply the balance to the payment of the mortgage debt." Here was an express renewal of the promise to pay the entire mortgage debt, and an agreement that upon failure to pay in full by a fixed date, the land should be sold and the net proceeds applied to the payment. The alleged deficiency in acreage was thus distinctly waived. The record in this case does not contain a copy of the agreement between Fishburne and the trustees, but from Fishburne v. Smith, 34 S.C. 338,13 S.E., 525, we quote the clause relating to the proceeds of the sale: "Proceeds to be applied to all costs and expenses provided for in this mortgage and of the sale, and then to the mortgage debt, and balance to Julian Fishburne." It is obvious that these words will not bear the interpretation that the sale of the property would operate as satisfaction, even if it produced less than the debt. The third, fifth and sixth exceptions, for these reasons, must be overruled.

The separate action of the defendant against Elliott, the purchaser, and Smith and Lee, trustees, was to set aside the sale made under the trust agreement and to have the land resold. It would not have been proper in that case, without the consent of the parties, to order ascertainment of the deficiency and judgment therefor against the maker of the bond. It is true, with the assent of the parties, the Court did order the resale to be made by the master instead of the trustees, and directed the ascertainment of the amount due on the bonds secured by the mortgage, to the end that the master might know how to distribute the fund arising from the sale; but there was no order for judgment for the mortgage debt or any deficiency, and no consent that there should be such a judgment. Even when an action is brought for the express purpose of a foreclosure and sale, if the complaint does not contemplate a judgment for the debt or the deficiency, a separate suit at law is proper and necessary to secure such a judgment. Jones on Mortgages, section 1228. The second exception cannot be sustained.

The defendant, after the sale made under the trust agreement, did not institute proceedings to charge the plaintiff and other mortgagees with the bid made and withdrawn by Elliott for $39,500, on the ground that Elliott was acting as agent for the mortgage creditors, but, on the contrary, sued to have the sale wholly set aside and a new sale made. The Court granted him all the relief he asked. Having elected to take the chances of resale, without asking that it be made at the risk of those who participated in the first sale, it is too late now for the defendant, after disappointment with the result of the second sale, to seek benefit from the first sale, which was annulled at his instance. The seventh exception is overruled.

The fourth exception does not affect the merits of the case and, therefore, is not considered. The first exception was abandoned.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.