Harris v. Rice

February 21, 1925. The opinion of the Court was delivered by This is an appeal from a decree of Judge Rice. His decree will be reported.

The appellant by six exceptions alleges error. The exceptions should be overruled under South Carolina InsuranceCo. v. Kohn, 108 S.C. 475; 95 S.E., 65. Allgoodv. Spearman (S.C.), 118 S.E., 189. Prudon v. Williams,26 N.J. Eq., 210; Jones on Mortgages (3d Ed), §§ 1227, 759, 1713, 1721, 1710. Rice assumed the outstanding mortgage given to Love for $3,000.00, on January 2, 1920.

The judgment is modified to conform to the majority opinion.

MESSRS. JUSTICES FRASER and MARION, and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur in part.

MR. CHIEF JUSTICE GARY and MR. JUSTICE COTHRAN did not participate.

MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN: I concur in the general conclusion reached by Justice Watts, but I think the judgment of the Circuit Court should be modified to the extent of giving Rice credit for the full amount realized from the sale of the mortgaged property.

There is no provision in the bankrupt law for the foreclosure of a mortgage. The holder of a mortgage may either prove a secured claim before the Referee in Bankruptcy, or he may remain entirely out of that Court and pursue his remedy in the State Court. When his claim is proven and allowed by the Referee, the trustee is ordered to sell the mortgaged property free from incumbrances and the lien of the mortgage is transferred to the fund thereby received.

The costs and expenses allowed to be deducted from the purchase price accrued in the Bankrupt Court, and were not properly chargeable against the fund realized from the sale.Smith v. Au Gres Township, 150 F., 257; 80 C.C.A., 145; 9 L.R.A. (N.S.), 876. In re Anders Tel. Co. (D. C.), 136 F., 995. Mills v. Virginia-Carolina Lumber Co., 164 F., 168; 90 C.C.A., 154; 21 L.R.A. (N.S.), 901.In re Harralson, 179 F., 490; 103 C.C.A., 70; 29 L.R.A. (N.S.), 737.

MESSRS. JUSTICES FRASER and MARION concur.