54 S.C. 223 | S.C. | 1899
The opinion of the Court was delivered by
It appears from the allegations of the complaint that the defendant, Mrs. Marion, on the 22d day of May, 1894, duly executed her bonds, six in number, payable to Joseph W. Barnwell, trustee, for the respective amounts mentioned in the complaint, aggregating in the whole the sum of $40,000; and to secure the payment of the said bonds, the defendant, oh the same day, duly executed her mortgage on the real estate described in the complaint, to the said Barnwell, trustee as aforesaid; that one of said bonds, to wit: for the sum of $17,000, was assigned by said Joseph W. Barnwell, trustee, to said Joseph W. Barnwell, as guardian of the minor children of N. B. Barn-well; another, to wit: for the sum of $8,666.67, was assigned to the plaintiff, Ann Josepha Wilson; another, to wit: for the sum of $6,933.33, to S. L. Howard and said Joseph W. Barnwell, as trustee of Anna L. Walker and child; and said S. L. Howard has died, leaving said Joseph W. Barnwell sole surviving trustee; another, to wit: for the sum of $4,000, was assigned to said Joseph W. Barnwell as agent; another, to wit: for the sum of $3,000, was assigned to the plaintiff, Ellen F. Hayne; and the remaining bond, for the sum of $400, was assigned to said Joseph W. Barnwell, individually; and that the defendant has made default in the payment of the said bonds according to their tenor and
To this complaint the defendant demurred; because “it appears upon the face of the complaint that there is a defect of parties plaintiff, in the omission of the minor children of N. B. Barnwell as plaintiffs.” At the argument she demurred orally, because the complaint does not state facts sufficient to constitute a cause of action; and for a specification of the deficiencies in the complaint, the following are stated in accordance with the Rule of Court: i. Because the mortgage is alleged to have been made to Joseph W. Barnwell, trustee, whereas the complaint is not brought by
The first and third questions as above stated, therefore, only remain to be considered and determined. As to the first question, to wit: Whether the minor children of N. B. Barnwell are necessary parties, we do not see how there can be doubt, in view of the express provisions of the Code, as they have been construed in several of our cases. The bond and mortgage upon which this action is based are not before us; but in the absence of any evidence to the contrary, we must assume that they are in the usual form — that is to say, that the bond is made payable to Joseph W. Barnwell, trustee, his executors, administrators or assignees, and that the mortgage was drawn accordingly. When, therefore, the bond for $17,000 was assigned to Joseph W. Barnwell, as guardian of the minor children of N. B. Barnwell, the practical, legal effect, so far as the question under consideration is concerned, was the same as if the bond of defendant had, originally, been made payable to Joseph W. Barnwell, as guardian of the minor children of N. B. Barnwell, and to an action for the enforcement of the contract, evidence by such bond and mortgage, the minor children of N. B. Barnwell were not necessary parties. Sec. 132 of the Code provides that “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in sec. 134,” and the provision in sec. 134 is that “* * * a trustee of an express trust * * * may sue, without joining with him the person for whose beneñt the action is prosecutedand then proceeds to declare that “a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another” (italics ours). As is said in Johnson v. Dawkins, 20 S. C., at page 532, the effect of thes,e two sections, when construed together, is the same as if the statutory provision read as follows: “Either the real party in interest or the party with whom a contract is made for another, may institute an action on such contract.” To the same
The judgment of this Court is, that the order overruling both of the demurrers be affirmed, and the case remanded to the Circuit Court for such further proceedings as may be necessary.