American &c. Mortgage Co. v. Moody

Citations

• 40 S.C. 187
• 18 S.E. 677
• 1893 S.C. LEXIS 21

Syllabus

<p>1. An Unappealed Decree is binding upon all parties to the cause.</p> <p>2. Costs in Equity — Improper Payment. — In action by senior mortgagee for foreclosure against mortgagor, junior mortgagee, and intermediate judgment creditors, the decree declared the mortgagor entitled to a homestead, and directed the costs of the action to be paid out of the proceeds of sale. Held, that the costs were chargeable upon the whole property and not the homestead only; that the defendant mortgagee, regarded in equity as substantially a plaintiff, was entitled to be paid his costs; and that the mortgagor was not entitled to costs, but having been paid, only the second mortgagee could complain.</p> <p>3. Decree — Two-Eund Doctrine. — An ambiguous decree construed to direct the sale of a tract of land, payment of costs out of the proceeds of sale, the payment of the senior mortgage of less than §11,000 primarily out of so much of the land as was homestead, and the junior mortgage out of the remainder of the homestead, if any, and the intermediate judgments out of so much of the land as was in excess of the homestead, in priority to the junior mortgage. And this was in conformity to the equities of the several parties under the “two-fund” doctrine.-</p> <p>4. Rule on Suerief. — Can the questions here considered be properly raised under proceedings by rule against the sheriff who made the sale directed by the court and disbursed the proceeds?</p>