Kinloch v. Savage

17 S.C. Eq. 464

• Court: Supreme Court of South Carolina
• Decided: January 15, 1844
• Status: Published

Opinion

Curia, per Johnson, Ch.

The court concur in the decree of the Circuit Court. A more correct view of the matter, probably is, that the letter of instructions addressed by Elliott to Laurens, was not an authority to buy, but directions not to sell, unless tlie property brought the amount of the debt due to the complainant. The probability is, that it would not now bring as much as the sum bid by Tobias, and withdrawing it from sale is complained of as an injury done to the defendants, for which indemnity is now claimed. But surely, the mortgagor cannot compel the mortgagee to foreclose his mortgage, and especially when, as in this case, the property mortgaged was the only certain security. That, indeed, would be reversing the order of things, by putting the mortgagee in the power of the mortgagor. The court might, and probably would, have entertained a bill against the complainant, at the instance of Kinloch, the security, to compel her to. proceed against his principal, but without this, the defendants had no right to compel her to sell whether she would or not. If they had wished to accept Tobi-as’s bid, and had paid her the balance due on the bond, that would have put an end to all cause of complaint, and that they might have done,

Appeal dismissed.

Dunkin and Harper, Chancellors, concurred. Johnston, Chancellor, absent from sickness,