Stewart v. Groce

Citations

• 42 S.C. 500
• 20 S.E. 411
• 1894 S.C. LEXIS 68

Syllabus

<p>1. Sale under Second Mortgage — Application op Proceeds. — Where land is sold under a second mortgage by the mortgagee under a power of sale requiring the surplus proceeds of sale to be applied to such junior liens as should give written notice thereof, or else to the mortgagors, and the proceeds of sale are applied, at the instance of the mortgagors, first, to a senior mortgage which contained no power of sale, and then the remainder to the second mortgage, the mortgagors have no right to any part of the proceeds, but the surplus, after paying the second mortgage, is held by the mortgagee in trust for a third mortgage of which he had knowledge, although no written notice of it was given to him.</p> <p>2. Ibid. — Ibid.—The sale of the land for its full value did not justify the second mortgagee in applying any portion of the proceeds of sale to the senior lien, but the land still remained subject to such first lien, and a junior lien was entitled to the surplus proceeds.</p> <p>3. Ibid. — Ibid.—But the assignee of the junior lien cannot recover of this second mortgagee so much of these present proceeds as was paid over to his assignor by the holder of the first mortgage after his receipt of this money, nor to the extent that he used in the purchase of this third mortgage property given to his wife by her father, who was himself responsible as surety for the debt secured by such third mortgage.</p>