Warren v. Raymond

Citations

• 12 S.C. 9
• 1879 S.C. LEXIS 29

Syllabus

<p>1. Richardson v. Ghappel, 6 S. C. 146, and Haynesworth v. Bischoff, 6 8. (7. 159, explained.</p> <p>2. A mortgage by the heir-at-law of land inherited is not such an alienation within the meaning of 3 and 4 W. <6 M., 2 Stat. 533, as will defeat the claims of the decedent’s creditors, so long as the mortgagor retains the possession. See Simons v. Bryce, 10 S. G. 354.</p> <p>3. But where, upon condition broken, the mortgagee takes possession of the land, under a power given in the mortgage, the mortgage thereupon operates as an alienation.</p> <p>4. A power of sale, in case of default, contained in such mortgage, but unexercised, would not be an alienation; but a sale under decree of foreclosure would be.</p> <p>5. A surrender of possession by mortgagor to mortgagee would constitute an alienation, but a mere assignment of the rents of the mortgaged premises would not be so regarded.</p> <p>6. A decree, from which no appeal was taken, directed a foreclosure and sale at a future day, unless a specified sum was previously paid, with the privilege to plaintiff, in case of deficiency, to enroll his decree and issue execution for balance due; a money decree was instantly enrolled and execution issued for the whole sum specified. Held, that the debt was liquidated by the decree, but that the enrollment and execution were erroneous, and created no lien on the defendant’s property. Distinction drawn between this case and Blake v. Heyward, Bail. Bq. 201. Haskelb, A. J., dissenting.</p>