Dial v. Gary & Tappan

Citations

• 27 S.C. 171
• 3 S.E. 84
• 1887 S.C. LEXIS 118

Syllabus

<p>1. A decree final on the issues having been rendered in a cause, the succeeding judge has no power to adjudicate any of the issues; he can only pass the administrative orders necessary to carry out such decree.</p> <p>2. No question having been made in the pleadings or evidence as to the order in which the mortgaged property should be subjected to the payment of the mortgage debt, and no such point considered by the Circuit Judge in his decree of foreclosure, a succeeding judge, in his order directing a sale of the property, cannot adjudicate thereon.</p> <p>3. Two parties, G. and T., indebted by note for $3,000, gave a mortgage on a town lot held jointly by them, reciting their indebtedness to be a joint penal bond to secure $2,000, and T. gave a mortgage on a town lot owned by him, reciting his indebtedness to be a penal bond to secure $1,000, but the real indebtedness was the note for $3,000, no such bonds being in existence — and this was the claim made in the complaint. Held, that under this mortgage the joint property was</p> <p>' liable only for the payment of $2,000 and interest, and the lot of T. was liable only for the payment of $1,000 and interest.</p> <p>4. It seems that a mortgage cannot be foreclosed for an amount exceeding the penalty of the bond secured thereby.</p> <p>5. In action for foreclosure, can judgment be rendered for the full amount of the mortgage debt and leave be given to issue execution therefor, before sale has been made and deficiency reported ?</p> <p>6. The judgment of this court having been more comprehensive than was intended, a petition for rehearing was granted.</p>