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CAYE & CO., INC., v. SAUL

May 9, 1956

W.C. CAYE & COMPANY, INC., RESPONDENT,
v.
R.M. SAUL, D/B/A SAUL CONSTRUCTION COMPANY, INC., APPELLANT.



The opinion of the court was delivered by: Moss, Justice.

May 9, 1956.

The appellant, R.M. Saul, did on March 19, 1955, execute and deliver to W.C. Caye & Company, Inc., respondent, his promissory note, whereby he agreed to pay the sum of Twenty-Eight Thousand Two Hundred Eighty-Two & 50/100 ($28,282.50) Dollars in eighteen consecutive monthly installments. He also executed on the same date a Conditional Sales Contract covering one motor road scraper as security for the payment of said note. The appellant defaulted in the payment of the indebtedness represented by said note and secured by the Conditional Sales Contract. Prior to the institution of this action he voluntarily surrendered possession of the motor road scraper to the respondent in Richland County, the same being delivered from the appellant's home in Edgefield County, of which he was a resident.

This action was commenced in Richland County by the respondent against the appellant for the purpose of foreclosing the Conditional Sales Contract. The prayer of the complaint was for judgment of foreclosure of the said Conditional Sales Contract, referred to in the complaint as a chattel mortgage, and for the sale of the said motor road scraper free and clear of all claims of the appellant, that his equity of redemption be barred and foreclosed in such property, that a sale of said property be had and the proceeds applied to the payment of respondent's indebtedness and that the respondent have judgment against the appellant for any deficiency after application of the proceeds of said sale.

The appellant gave due notice that he would move before the Presiding Judge of the Fifth Circuit for a change of venue of this action from Richland County to Edgefield County, the place of the residence of the appellant. This motion was heard by the Presiding Judge of the Fifth Circuit and refused. The court held that under Title 10, Section 301 (4) of the 1952 Code of Laws of South Carolina, that the subject matter of the action was in Richland County and that the cause must be tried in said County. He also held that the cause of action was for the recovery of personal property distrained.

The appellant comes to this court upon five exceptions that raise the single question of whether or not the Presiding Judge committed error in refusing to grant the appellant's motion for a change of venue from Richland County to Edgefield County, the residence of the appellant.

There is no question but that the appellant was in default in the payment of the debt due by him to the respondent. He had voluntarily surrendered the possession of the motor road scraper which was security for the debt. The respondent was in possession thereof at the time of the commencement of this action.

In the case of Speizman v. Guill, 202 S.C. 498, 25 S.E.2d 731, 735, this Court stated:

"The remedies open to a chattel mortgagee when the mortgage becomes past due are set forth in Stokes v. Liverpool & London & Globe Insurance Company, 130 S.C. 521, 126 S.E. 649, 652: `When a chattel mortgage becomes past due, the mortgagee has three remedies for realizing upon his security: (1) He may peaceably take possession of the chattel, advertise and sell and apply the proceeds of sale to his secured debt, paying the surplus, if any, to the mortgagor; (2) if possession be refused, he may institute claim and delivery proceedings to get possession of the chattel for the purpose of sale as in the first instance; (3) he may institute a proceeding similar to the foreclosure of a mortgage of real estate.'"

The purpose of a foreclosure proceeding is to fully determine the entire controversy between the parties, to protect the rights of all parties, to determine the amount of the debt in order to disburse the proceeds of sale, and should the personal property so sold be not sufficient to pay the debt, that a deficiency judgment may be entered against the maker of the obligation. Speizman v. Guill, supra; Judson Mills v. Norris, 166 S.C. 422, 164 S.E. 919; General Plywood Corporation v. Richard Jones, Inc., 216 S.C. 322, 57 S.E.2d 636.

Section 10-301 of the 1952 Code of Laws of South Carolina, which the respondent invokes, reads as follows:

"Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in certain cases as provided in § 10-310:

"(1) For the recovery of real property or of an estate or interest therein or for the determination in any form of such right or interest and for injuries to real property;

"(2) For the partition of real property;

"(3) For the foreclosure of a mortgage of real ...


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