Opinion
7975
July 18, 1911.
Before MEMMINGER, J., Marlboro, May, 1910. Affirmed.
Action by Geo. A. Brown against J.B. Green, as sheriff, and Wm. M. Bird Co. Plaintiff appeals.
Messrs. McColl, McColl LeGrand, for appellant. Mr. LeGrand cites: Judgment is no lien on homestead: 24 S.C. 424; 26 S.C. 1. Where action is for injunction temporary injunction should be granted: 75 S.C. 221; 69 S.C. 159.
Messrs. Newton Owens, contra.
July 18, 1911. The opinion of the Court was delivered by
Plaintiff brought this action to enjoin the defendant Green, as sheriff, from selling a storehouse and lot in which he claims homestead.
The material allegations of the complaint, which are undisputed, are: That plaintiff is and, for some time, has been the owner of a certain storehouse and lot in the town of Bennettsville, and is entitled to a homestead therein; on March 18, 1909, he executed a mortgage thereon to secure his bond for $3,786, with interest thereon from date at 8 per cent. per annum; on June 8, 1909, he executed a second mortgage thereon to secure a debt of $2,000. Both mortgages were promptly recorded, and the lien of each is superior to that of the judgment of Bird Co., hereinafter mentioned, and both are still unpaid. In November, 1909, William M. Bird Co. obtained judgment in Williamsburg county against him for $276.93, a transcript of which was duly filed and docketed in the office of the clerk of court for Marlboro county, on February 19, 1910, an execution was thereupon issued and directed to the defendant Green, as sheriff. Commissioners were duly appointed to set off the judgment debtor's homestead. They made their return, certifying that the property exceeded in value $1,000, and that it could not be divided and the homestead set off without injury to the remainder, and appraised it at $6,000, which is its full value. On the filing of the return, to which no exceptions have been taken, the sheriff served notice on the debtor that, unless he paid into his office the excess of the appraised value of the property above the homestead — $1,000, — that is, unless he paid in $5,000, within sixty days from date of the notice, he would sell the property under the execution. Upon the foregoing facts and the further allegations that, if the sheriff sold the property, his right of homestead would be defeated, the plaintiff asked that the sale be enjoined. The Court granted a temporary order of injunction, which it vacated, on motion of defendants.
As far as they went, the proceedings below were in exact conformity to the provisions of section 2628, 1 Code, 1902. The complaint did not state a cause of action for injunction. We fail to see wherein the cause of action appellant's right of homestead. Under the provisions of section 2638, above referred to, there can be no sale unless more than $1,000 is bid at the execution sale. If more than $1,000 is bid, the sale is made, and the sheriff deposits $1,000 with the clerk to be applied, under the order of the Circuit Judge, on application of the judgment debtor, to the purchase of a homestead of that value; and the residue is applied to the payment of the costs and expenses of the appraisement and sale and the executions in the hands of the sheriff, according to law. The fact that the property is covered by mortgages makes no difference. Because, at a sale of property covered by mortgages under a junior execution, as in this case, only what, for the sake of convenience, is called the mortgagor's equity of redemption is sold, which is, however, the legal title subject to the lien of the mortgages; and, therefore, the purchaser is supposed to bid no more than the value of the property over and above the mortgage debts. Moss v. Bratton, 5 Rich. Eq. 3: Norman v. Norman, 26 S.C. 46, 11 S.E. 1096, and cases cited by the Court. Presumptively, no bid will be received at such a sale for more than the value of the property over and above the mortgage debts. If the property is worth less than the aggregate value of the homestead and the mortgage debts, as alleged in this case, it cannot be supposed that a bid for more than $1,000 will be received, and, if not, then no sale will be made. On the contrary, if it is worth more, the judgment creditor has the right to have it sold. Otherwise, the judgment debtor will be allowed to have property in excess of the value of the homestead which cannot be reached by execution.
Affirmed.