Craig v. Miller

Citations

• 41 S.C. 37
• 19 S.E. 192
• 1894 S.C. LEXIS 79

Syllabus

<p>1. Foreclosure — Parties.—In action by tbe purchaser under execution sale of land subject to mortgage, to redeem the mortgage, the mortgagor, who had conveyed her interest to the mortgagee, with the mortgage lien preserved, was neither a necessary nor proper party, even though she held the mortgagee’s note for the excess of value over the mortgage debt, claiming such excess as the consideration for her conveyance of her homestead right.</p> <p>2. Mortgage — Merger.—Where mortgagor conveys the land to mortgagee with the express stipulation that the mortgage shall remain open for the purpose of protecting the purchaser against junior encumbrances, the court will not regard the mortgage as satisfied or merged.</p> <p>3. Mortgage — Conveyance—Homestead.—A mortgage of land, then judgment against the mortgagor, then a conveyance by mortgagor to mortgagee, keeping the mortgage open, and then a purchase by the judgment creditor at sheriff’s sale under this judgment — held, that the mortgagor had divested herself of all right to a homestead in this land before the sheriff’s sale.</p> <p>4. Ibid. — Ibid.—Ibid.—Marshalling Securities. — Nor could the mortgagee claim this homestead right under his deed of conveyance from the mortgagor, as he would be required in equity, in favor of the judgment creditor, to first exhaust so much of this land as could be claimed as a homestead as against the judgment, but could not be so claimed as against the mortgage. Therefore, the purchaser at sheriff’s sale is entitled to redeem this mortgage.</p> <p>5. Ibid. — Judgment—Marshalling Securities — Cases Criticised. — The two-fund doctrine of equity will be applied to a homestead as between mortgagee and judgment creditor, even though the mortgaged land be a single tract. The cases of Ex parte Kurz, 24 S. C., 468, and Ex parte Carraway, 28 Id., 233, explained.</p>