Younts v. Starnes

Citations

• 42 S.C. 22
• 19 S.E. 1011
• 1894 S.C. LEXIS 12

Syllabus

<p>1. Findings of Fact — Mortgage to Partnership — Survivors.—Error cannot be imputed to the Circuit Judge in holding that the plaintiffs were the survivors of the partnership mortgagees, and as such the owners and holders of the mortgage debt, where no such question was raised in the court below, and there was testimony to the facts so found.</p> <p>2. Substituted Deed — Proof.—Where a deed and mortgage back are executed at the same time, and afterwards a second deed of later date is executed in substitution for the first, the first deed, in action to foreclose the mortgage, is sufficiently proved by the testimony of grantor and grantee.</p> <p>B. Deed and Mortgage — Second Deed — Warranty.—The second deed being understood and intended as a substitution for the first, and the vendee’s mortgage for the purchase money having been contemporaneous with the first deed, such mortgage was not a prior encumbrance against which the vendee was protected by the vendor’s covenant of general warranty in the second deed.</p> <p>4. Ibid. — Ibid.—Recording—Notice.—And a mortgagee, subsequent to the second deed, having notice at the time of taking his mortgage that the purchase money of the land was not fully paid, and further notice at the time of his purchase of the land under decree of foreclosure of the purchase money mortgage given by his mortgagor, cannot claim to be a purchaser for value without notice of the duly recorded mortgage to the original vendor, even though the first deed, of even date with that mortgage, had never been recorded.</p> <p>5. General Exceptions not considered.</p>