McLure v. Melton

Citations

• 34 S.C. 377
• 13 L.R.A. 723
• 13 S.E. 615
• 1891 S.C. LEXIS 63

Syllabus

<p>A sold a lot of land, upon which rested the lion of a judgment, to B, taking several notes and a mortgage. At the maturity of the last note it was cancelled and the mortgage marked satisfied, B giving to A a written, unsealed agreement to pay this judgment as a part of the unpaid purchase money. B, in consideration of love and affection, conveyed to trustees for the benefit of his wife and children with general warranty. The trustees, under proper authority, conveyed to 0 for value, without warranty, he having at least constructive notice of the judgment, who conveyed with warranty to D. The lot being levied upon and about to be sold, 0 paid the judgment, and thereupon intervened by petition in a cause then pending for the settlement of B's estate, B being dead, and sought therein to recover the amount paid by him in exoneration of his warranty to D. Held,</p> <p>1. Judgments — Warranty—Subrogation.—That the payment by C of the judgment was not to relieve A, but to perform C’s covenant of warranty, and therefore he has no equity to bo subrogated to the rights of A or of the holder of the judgment; and in no event could this judgment, which was not against B personally, be set up as a judgment claim against the general assets of B’s estate.</p> <p>2. Mortgages — Administration—Equities.-—That the mortgage could not be set up as such except against the property mortgaged, but only as of the rank of the sealed notes which it secured. And having been extinguished by the agreement, nothing remained except perhaps an equity in A to have the lot of land sold to pay the debt, with which equity 0 had no connection.</p> <p>3. Warranty — Damages.—C had no i-ights under the warranty in the deed of A to B, nor could he recover any money under the warranty in the deed of B to the trustees, as the measure of damages for breach of warranty in such cases is the purchase money with interest, and this deed was voluntary.</p> <p>4. Subrogation — Administration.—The agreement between