Moore v. Sanders

103 S.E. 589 | S.C. | 1920

June 28, 1920. The opinion of the Court was delivered by The respondent sold an automobile to C.H. Singleton. Singleton paid part cash and gave several notes, and a mortgage of real estate and personal property to secure the notes. Some of the notes being unpaid, the mortgagee brought suit to foreclose his mortgage and demanded the immediate possession of two horses covered by the mortgage. The plaintiff gave bond, and the sheriff seized the horses. The defendant gave bond, and the horses were returned to him. He kept them awhile, and then returned them to the sheriff, who, by agreement, sold them. The balance of the property covered by the mortgage was sold under a decree in foreclosure. The proceeds of sale did not pay the debt, and judgment was entered for the deficiency. This action was brought against the sureties on the bond given by Singleton for the unpaid balance of the mortgage debt. The securities of Singleton were P.S. Sanders and Josh Deas. Deas died, and his executors were made parties.

The original case from which this case comes, to wit,Moore v. Singleton, was, as Judge Gary, the presiding Judge, held, an action to foreclose a mortgage of real and personal property. In this case the action was treated, so far as these appellants are concerned, as an action in claim and delivery, and the judgment was given against the appellants, as bondsmen of Singleton, for the entire amount found due to respondent, Moore, by Singleton, the judgment debtor, in the former action. The question in this case is, For what are the bondsmen liable? It is most favorable to respondent to treat the former case as an action for claim and delivery. The liability of the sureties in claim and delivery, as stated in the statute, in the bond, and in the case of Thompson v. Joplin, 12 S.C. 580, is very broad. It matters not how broad language may be, yet it is always limited to the subject of which it treats.

Claim and delivery is an action to determine the right to the possession of personal property. When the right to the possession is founded on an obligation to secure the payment of a debt, then the right to the possession depends upon the existence of a debt, but not its amount. If there is any debt, then the obligee is entitled to the possession. The judgment in such cases is for the possession of the chattels and damages for the wrongful taking or withholding of possession. Until the right was given by the statute, the trial Court was not authorized to determine the amount due between the parties. The form of the judgment was prescribed by the statute and it was not in contemplation of law that the liability of the sureties should exceed the scope of the action, to wit, the enforcement of the right of possession and damages for the unlawful taking or withholding.

The case of Parish v. Smith, 66 S.C. 424, 45 S.E. 16, cited by the respondent, does not sustain him in his claim for the whole judgment in Moore v. Singleton. In Parishv. Smith, supra, 66 S.C. at page 432, 45 S.E., at page 18, we find:

"In Archer v. Long, 47 S.C. 556, the Court says: `If the plaintiff returns the chattels adjudged to be the property of the defendant within a reasonable time, in as good condition as they were at the time the judgment was rendered, * * * the judgment will thereby become inoperative and satisfaction should be entered upon the record.'"

In the instant case the chattels were returned. There has been no judgment for damages for their detention, and no liabilities of the sureties.

The judgment is reversed, and the complaint dismissed.