Doyle v. Jones

180 S.E. 451, 176 S.C. 429, 1935 S.C. LEXIS 206

Opinion

The opinion of the Court was delivered by

Mr. Justice Bonham.

In addition to the narrative of facts set out in the decree of Judge Grimball, it may be well to state that the appellant relies strongly upon two grounds, viz., that W. I. Jones had promised his mother, Mrs. Mary L. Jones, not to put on record the mortgage she gave him, and that his doing so worked an injury to appellant. We may say that there is no competent and relevant proof of such agreement; nor do we think that if there had been such proof, it would avail appellant. Further, appellant urges the position that the mortgage to W. I. Jones was one of indemnity; that Jones has suffered no loss; has not been called upon to pay the liability, and is not entitled, therefore, to foreclose his mortgage. It is sufficient to say, in reply to this argument, that the liability still exists against which the mortgage was given to protect W. I. Jones. As long as it does exist, W. I. Jones is in danger of being called on to pay it. He is for that reason entitled to maintain his security unimpaired. The circuit decree correctly perceives this, and also recognizes that the appellant is entitled to have his junior mortgage foreclosed. Therefore, the decree provides that the property be sold subject, to the lien of the Jones mortgage. It is not provided that the Jones mortgage be paid from the proceeds of the sale; on the contrary, whoever buys the land at the sale now ordered, takes it subject to the liability of having to pa)? the Jones mortgage if Jones is called on to pay the Burroughs and Collins mortgage.

All exceptions are overruled, and the judgment below is affirmed.

Mr. Chiee Justice Stabler and Messrs, Justices Carter, Baker, and Fishburne, concur.