Jackson v. Merchants' Hotel Ass'n

Citations

• 37 S.C. 562
• 16 S.E. 713
• 1892 S.C. LEXIS 62

Syllabus

<p>1. Chattel Mortgage—Accounting—Action to Redeem.—Where property is seized by the holder of a chattel mortgage after condition broken, the mortgagor may redeem before sale, or, after sale, claim an accounting for the surplus proceeds of sale after payment of the mortgage debt and all other indebtedness of the mortgagor to the mortgagee.</p> <p>2. Ibid.—Ibid.—Ibid.—It would seem that a junior mortgagee would occupy the position of assignee of the mortgagor, and have only these same rights, provided the chattel mortgaged could be sold only in solido.</p> <p>3. Ibid.—Ibid.—Junior Mortgage—Case Criticised.—But where the senior mortgagee was the landlord, and also levied a distress warrant for rent and sold the chattels separately, realizing more than enough to satisfy his mortgage, the sales, after such satisfaction, could be referred only to the distress warrant, which was subsequent in lien (if a lien) to a junior mortgage, and, therefore, were made subject thereto. The purchasers of the articles sold under the distress warrant bought subject to the second mortgage, which had then become the senior lien, and the remedy of the second mortgagee was against the articles themselves, and not against the proceeds of sale in the hands of the first mortgagee, such proceeds representing only a sale of the equity of redemption, which was liable for the rent. Paysinger v. Shumfard, 1 Bail., 237, recognized and followed.</p> <p>4. Ibid.—Ibid.—Ibid.—In such case, the burden of proof would be on the plaintiff, the second mortgagee, to show what articles were sold after the satisfaction of the first mortgage.</p> <p>5. Junior Chattel Mortgage—Action to Redeem.—It may be that second mortgagees could maintain an action to redeem at anytime prior to a sale of the chattels by the first mortgagees, but not after a sale had been made.</p>