The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1880-09-22
SUpRERE COURT DECISION.
A Scotch Mortgage may be Enforced
in This State.

A Scotch Mortgage may be Enforced
in this State.
The State Of South Carolinn-In the Supreme
Court, Alexander Robinson, respondent vS
The Amateur Literary aud traternal Assc-
citation OF Charleston, South Carolina. ap-
pcllunt. April Term. 1881. Opinion, McGo~-
an, Al
This is acase submitted, containingthe facts
1871, Alexander Robinson executed o bond to
T.. Moultrie. Mordccal. Esq, for $40 borrowed
money, and at the same timcIsave n mortgage
to secure the bond Of Il house and lot III the
City ofClarleston, which contained inc follow:
ing power TO sell: "liut in ctsc OF non.pay-
mcnt of the said bond with the interest there
on. or any part thereof, &c. then and in such
case II may be lawful Tor the said I. Moultrlc
Mordccai, his heirs, executors, ad'nlnislralor
empower and authorize the said Il. Moultrie
Morjccni, his heirs. executors. administrators
Or assigns, 10 grant. bargain, sell, release ana
onvey the said premises, with the uppurte-
nunces. ut public auction or vendue, Mt which
sale they, or my Of them shall llnvc right to
become the purchasers of the said premises.
and on such sale to make and execute t0the
purchaser or purchasers, his nero their heirs
or assigns. forever, u conveyance in fee ofthe
said premises, free and discharged from I'LL
equity Of retention" &c, =,
On january 8, rs, Mordccai for value assigned
tllcu UOllu ullu f1iol GShpCl " LiC uSlCloult '.
poration, who Robinson having made default
n dvertised under the power In the mortgage
the premises for sale, and sold them ut public
cutlery April 10, 1919, both the plaintif and OF
ficers or the defendant corporation being pre-
sent at the nc. The corporation bid off the
property for S4DO, complied with the. terms OF
sale, received title and went into possession
subsequently the property was offered for slle
at auction and bid OH by one Francis Ryan
for SS5O, but he refused to comply with the
tcrmsl of sale, as In the meantime this contro-
versy about the title had arisen.
On August ., 1879, Robinson madethc claim
that the llrst purchase by the defendant cor
p~oratlon was void, which they denied. insist
Ing That the deed to them and possession un-
der 1t made their Title absolute. I~hcqucStion
was submitted tothc court, the Circuit Judge
set aside the sale and udJudgel that the plain
titf was entitled TO redeem; the defendant APP.
penls TO this Court on several grounds, but
they may all he considered under the first cN-
ception, which Is Us follows: because the sale
under The power aud the purchase there under
und the conveyance in conformity Herewith
and the voluntary surrender Of the premises
by the plaintiff to the defendant under the
conveyance, made the title of the defendant
absolute, and that there was and Is no equity
of redemption In the plaintiff
1t may now be regarded rs established In
South Carolina that Il Inortgagor may, by
provision in the mortgage, confer upon the
mortgage the power 70 sell the morlEaGcd
premises 10 pay, in case Of default. the dcotl
secured. Mitchell W.. Bryan. ii Rich. L., 8S6:
Webster VS.. Brown and Hcmmctt, z S. C.,1SS.2
Jones ~ mortgage. In the case of Mitchell
vs.. Bryan the Court says This power to sci
real estate conferred by the mOrtgagor on the
mortgage Is not familiar In our observation
but ii Is not liable TO any legal objection. = y
Enough upon this subject may be seen by con.
4 sale under such a power Is equivalent TO
Il sale and purchase under q decree In cqtity,
and will cut oil all right Of redemption, pro
vided the mortgage faithfully discharge IN
4, ~ ro,,~nnt, fho Irtihc i'm ,ncnI I1nnT, him M
donee Of the power. Jones on Mortgage: 1877
Hall VS.. Bliss, lis Mass. 51S. But while the
courts win not set aside powers anthorixing
sell lands 1nOrtgaged for the reason that they
are the contracts Of the purties themselves, yet
such powers may be so easily used for purpos-
es oroppression teattbey scrntiniZe sules made
under them very closely,
The plaintiff Robinson executed n mortgage
In which he expressly conferred upon the
mortgage or his assignee the :power to sell
upon default and to be the purchaser himself
Tie MORTGAGE assigned the bond and mort
guge to the defendant corporation, and upon
default they advertised, sold ut public auc-
ton and purchased themselves, All OF which
they had, by the terms Of the plaintiffs own
warrant. the rightto do; then why should
their purchase be set aside! 1t is n0t alleged
that they did not nave express authority TODD
| what they did do, and therefore II there is
good ground to set aside the sale, 1t must In
some way relate to. the nidnner In which the
sale was made. The casc submitted that the
defendant corporation arc guilty OF any actual
Jrdud In selling the house and lot which they
purchased. Fraud being n fact should have ap-
peared In the case. hut not nppearingis taken
mot to lcxist. A number of single facts are
stated In the case and IT seems that the
question intended to be submitted Is whether
these unconnccted facts all taken together
constitute constructive fraud sufficient to set
aside the sale.
The decree of the Circuit Judge sets ASIDE
the sale, but upon what ground 1t does not
state. The case submitted charges no actual
Saud, the circuit decree charges none, unless
lit may be involved in order setting aside the
sale. We arc left to search an original con
cIusion as TO the bona Jldes, from the facts
stated, viz: the advertisement, purchase by
mortgages and prospect of a resale ut an nd
vanced price. The grounds upon which the
decree is based appears no where sunless II
may be In the arguments OF counsel. 1t Is
then urged that the terms Of the bond were
hard Interest high &c. That is noground to set
us they stood. 1t is said again that the pro-
perty was not sufficiently advertised to at
tract purchasers. 1t would seem to ben full
answer to this, that the advertisement de-
s sisaI terms ts SS wh pfsns 'hey w se d s"s ,de in
the mortgage by the plaintiff himself. with
the omission only Of the words with the
building thereon" The land included what
ever buildings were on 1t, and the buildings
thereon would have been mere surplusage,
unless the omission WINS with n corrupt MO-
tive which Ia not charged.
It Is also said hat the defendant corporation
as assignee OF the mortgage. purchased at
their own sale, which Is not allowable. The
terms of this mortgage expressly authorized
the mortgage to purchasea at his own sale under
the power given, and that made clear the right
which without such express agreement
| might have been doubtful. 2Jones on Mortg.
1876 Hall VS.. Bliss, lis Mass, 1858. Blu 1t Is in.
sisted that If there Is nothing In any Of the
other points the lot was sold ut n very made
uuate price and that alone Is sufficient to
set aside the sale. The inndeQuacy here Is de-
MED, When q public sale Is open and fair In
! all respects free from fraud, mere tnadcqun-
cy OF price Is not sufficient to set aside q sale
unless the inadeQuacy Is such ins to furnish
evidence OF fraud npon the part Of the mort
gage. which is not alleged here.
the necessity Of s%crutinlzing such sales very
closely, we nre Unable TO see any such wan
OF fairness or good faith in these proceedings
as would authorize us 10 setuside the convey.
ance to the defendant based or the sale OF
the 18th April. On The contrary, the acts OF
| the plaintiff himself would seem to confirm
the conclusion that there was no want OF fair
ness or good faith. The sale was advertised
regularly, nnd besides the plaintiff received
personal notice. He waS present at the sale
and made no objection without any murmur
OF complaint he yielded possession to tho
defendant and seemed satisfied until they
had the prospect OF selling the property at an
advance price. when he put forward his claim
to redeem under. the mortgage. 1t seems to us
too late. The Circuit decree Is reversed and
the case rtmandcd for such orders as may be
"eee'' A J. WILLARD, C. J.s.C.
HENRY MCiVER, a. j.
Filed September 4, 1881.