28 S.C. 466 | S.C. | 1888
The opinion of the court was delivered by
In January, 1870, John P. Reed made and delivered to the plaintiff; as receiver, his bond for $1,080 with interest, &c., and in order to secure the bond at the same time executed a mortgage of “all those lots or tracts of land in the town of Camden, on the corner of Rutledge and Church streets,” -&c. The bond and mortgage were both signed by J. P. Reed, trustee, without stating for whom, and in the bond the obligor “bound himself, his heirs, executors, and administrators.” In 1877, the mortgage was foreclosed on the lots. Judgment of foreclosure was rendered for the amount due, $1,382.68, and the mortgaged property ordered to be sold, and the proceeds applied to the amount due; that the^sheriff make a report of said sale, and if the proceeds should be insufficient to pay in full the amount, the balance should be paid by the defendant to the plaintiff. In December, 1877, the mortgaged lands were sold for $550, but at that time no execution was issued to collect the remainder of the debt.
„ In 1884, J. P. Reed died, leaving a will, of which W. F. Reed, the defendant, is the executor. In February, 1887, the plaintiff caused a summons to be issued against W. F. Reed, the executor, to show cause, if any he could, why an execution should not issue, to enforce payment of the remainder of the judgment .of foreclosure, and the order was granted by Judge Wallace. In
And the defendant appeals to this court, upon the grounds: “1. That the judgment being entered against J. P. Reed, trustee, the executor of J. P. Reed is not a party upon whom notice for leave to issue execution should be served. 2. That the estate of J. P. Reed is not liable for judgments against J. P. Reed, trustee, and the estate of J. P. Reed cannot be subjected to judgments against J. P. Reed, trustee, by a summons to show cause why execution should not be issued upon a judgment against J. P. Reed, trustee, served upon the executor of J. P. Reed.”
We agree with the attorney for the defendant that the proceedings to have the execution issued, and to revive the judgment, are in the nature of a scire facias, that they are a continuation of the action to foreclose, and must conform to the record in that case; but we do not see how that helps the difficulty. The question still recurs, whether a judgment against John P. Reed, describing him simply as “trustee,” was binding upon him as an individual. He was the only defendant named, and unless the judgment bound him individually, there was no judgment at all, in that part of Judge Townsend’s decree of foreclosure, tvhich directed, “that if the proceeds of such sale be insufficient to pay the amount so reported due to the plaintiff, with the interest and costs as aforesaid, the said sheriff specify the amount of such deficiency in his report of sale, and that the defendant do pay the same to the plaintiff,” &c.
The general rule undoubtedly is as stated by Judge Story: “In general a trustee is only suable in equity in regard to any
In the argument here, this was conceded to be the general rule, but it was insisted that this case should be made an exception ; that the right to hold John P. Reed individually liable on his bond, was a personal privilege accorded the obligee, receiver McDowall, which he could elect not to exercise, and that the circumstances of the case show that he waived that right. We cannot agree, as claimed, that the original proceeding was for “a strict foreclosure,” limited only to the sale of the lots mortgaged; for it prayed a decree for the amount of the debt, $1,321.04; that the lots should be sold and the proceeds applied to the payment of the debt, and “execution be awarded for the balance,” without, however, expressly stating against whom it should issue. It is true that at the time of the foreclosure there was no execution issued, to enforce payment of the balance of the debt left unpaid by the sale of the mortgaged premises, and that there was considerable delay, before the proceedings were instituted to have an execution issued; but we could hardly venture to infer that there was any such waiver on the part of the plaintiff, in the very face of this proceeding to enforce the judgment by execution, and the finding of two successive judges on the Circuit against such alleged waiver.