Fishburne v. Smith

Citations

• 34 S.C. 330
• 13 S.E. 525
• 1891 S.C. LEXIS 54

Syllabus

<p>1. Evidence — Practice.—Where the record fails to show that any motion was made before the Circuit Judge to suppress testimony taken de bene esse, exceptions alleging error in not suppressing such testimony cannot be considered.</p> <p>2. Discontinuance. — Where an agreement provides for the discontinuance of an action for foreclosure and a sale of the mortgaged premises by trustees, an order of discontinuance should be entered on the record of that action before a sale is had under the agreement.</p> <p>3. Amount Due — Application op Proceeds. — A decree of sale should not direct the application of the cash portion of the sale to a mortgage lien, until it has been ascertained what is the amount of the debt so secured.</p> <p>4. Compliance with Bid.' — -Land was offered for sale under a mortgage for one-third cash in 20 days, §1,000 thereof to be paid down at time of sale, and was bid in by the mortgagor for more than §1,000 in excess of all liens and charges, who thereupon offered his receipt for §1,000 of the surplus coming to him as a payment of the cash then required. Held, that this was no compliance, as it required more than one-third of his bid to satisfy the mortgage, which was to be first paid.</p> <p>5. Evidence. — In action under an agreement, whereby a mortgagor conveyed the mortgaged premises to two persons to sell and pay the purchase money mortgage out of the proceeds, testimony of all prior transactions relating to the purchase of the land, a foreclosure suit, &c., was incompetent.</p> <p>6. Sale by Trustee. — These two persons advertised the sale, but only one was present, and the agent of the mortgagees made a bid which was withdrawn at the suggestion of the seller, and then made a lower bid, which was accepted as the highest and last. Held, that this sale could not be sustained, as the property sold at the instance of the trustee for sale for less than the purchaser was willing to give.</p> <p>7. Compliance with Bid. — Held further, that the pu