122 S.E. 503 | S.C. | 1924
Lead Opinion
April 21, 1924. The opinion of the Court was delivered by Action upon a redelivery bond executed by W.M. Willimon as principal and R.C. Willimon as surety, in a claim and delivery proceeding brought by Mrs. Wilkins against W.M. Willimon, for the recovery of the possession of an *511 automobile covered by a mortgage from him to her, which was past due. In that proceeding, Mrs. Wilkins in her affidavit valued the car at $2,500, and gave a bond under the statute in the sum of $5,000. The car was seized by the Sheriff, and thereupon W.M. Willimon executed a bond as provided in Section 474 of the Code of 1922, with R.C. Willimon as surety, in the sum of $5,000, conditioned upon "the delivery of said property to the plaintiff, if such delivery be adjudged, or for the payment to the plaintiff of such sum as may be recovered against the defendant in this case."
The original claim and delivery action of Mrs. Wilkins against W.M. Willimon was tried at September term, 1921, and the following verdict was rendered by the jury: "We find for the plaintiff two thousand three hundred and seventeen and 32/100 ($2,317.32) dollars." It is conceded that this represented the amount due by W.M. Willimon to Mrs. Wilkins upon the note which was secured by the chattel mortgage, with interest and attorney's fees as called for in the note. Upon this verdict judgment was entered against W.M. Willimon. The surety R.C. Willimon was not a party to that action.
The judgment not having been paid, the plaintiff Mrs. Wilkins instituted the present action against W.M. Willimon and R.C. Willimon, on January 12, 1923, upon the redelivery bond above described. The complaint alleges the facts as substantially set forth above, and particularly stated that the redelivery bond was executed "in accordance with the statute with reference to claim and delivery proceedings."
The only defense set up in the answer of R.C. Willimon, the surety, which we deem necessary to consider, is that the plaintiff in the original claim and delivery action having elected to take a verdict against W.M. Willimon for the amount due upon the note secured by the mortgage, instead of a verdict for the recovery of the possession of the car or for its value in case delivery could not be had, with *512 damages for the detention, the judgment entered upon such verdict does not represent that for which the surety stood obligated, and that he is not responsible upon his bond therefor.
The plaintiff moved before the Hon. C.M. Efird, Special Judge, presiding at the February term of Court, 1923, for an order striking out the answer of R.C. Willimon as frivolous, irrelevant, redundant, and constituting no defense to the plaintiff's cause of action. The presiding Judge took the matter under advisement, and later filed an order granting the plaintiff's motion and allowing judgment against the defendants for the amount prayed for in the complaint, $2,335.67, with interest from September 21, 1921, that amount being composed of the judgment in the original claim and delivery proceeding, $2,317.32 and the costs $18.35. Thereafter judgment was duly entered for said sum in accordance with the order, and the defendant has appealed.
The appeal presents squarely this question, and it is the only one we deem proper or necessary to consider:
Where, in an action of claim and delivery of personal property covered by a mortgage, the plaintiff recovers a judgment, not for the recovery of the property or for its value, with damages for the detention, but for the amount of the debt secured by the mortgage, is the surety upon a redelivery bond given by the defendant responsible in an action upon the bond for such judgment?
It will be particularly noted that the record shows that the plaintiff in the original proceeding "claimed the immediate delivery" of the property and gave bond according to the statute; that the Sheriff seized the property; that the defendant exercised his right to a redelivery of it under Section 474 and was in possession of it at the time of the trial. This is important, as will be seen, in determining the proper form of verdict and judgment, under these circumstances, *513 in the event that the plaintiff prevails before the jury, in the original claim and delivery action.
Sections 542 and 600 of the Code must not be confused. The one regulates the form of the verdict in claim and delivery; the other the form of the judgment; the one is mandatory; the other directory and optional, as the circumstances may require. The form of the verdict and the form of the judgment vary according to the proceedings which may have been taken in reference to the possession of the property and to the conclusion arrived at by the jury upon the merits of the case.
The record in a case of claim and delivery will necessarily show: (1) That the plaintiff has given bond and secured possession of the property, retaining the same, the defendant not having exercised his right of redelivery under Section 474, but by his answer claiming a return of the property; or (2) that the plaintiff has not given bond and thereby secured possession of the property, the same remaining in the possession of the defendant; or (3) that the plaintiff has given bond and the defendant has secured a return of the property from the Sheriff under Section 474.
Condition 1: Where the plaintiff has given bond and secured the possession of the property, retaining the same, the defendant not having exercised his right of redelivery under Section 474, but by his answer claiming a return of the property.
Whether the verdict be in favor of the plaintiff or of the defendant, Section 542, is mandatory, that "the jury shall assess the value of the property." A verdict, therefore, in favor of the plaintiff, should be:
"We find for the plaintiff the right to the possession of the property described in the complaint, the value of which is assessed at ($ ______) dollars, together with ($ ______) dollars damages for the wrongful detention thereof by the defendant" (if such damages be alleged and proved). *514
Under Section 600 the judgment entered upon this verdict should conform to the verdict.
A verdict for the defendant should be:
"We find for the defendant the recovery of the possession of the property described in the complaint, the value of which is assessed at ($ ______) dollars, together with ($ ______) dollars damages for the wrongful taking and detention thereof by the plaintiff" (if such damages be alleged and proved).
Under Section 600, the judgment entered upon this verdict should be:
"That the defendant recover of the plaintiff the possession of the property described in the complaint, or in case delivery cannot be had for its value ($ ______) dollars, together with ($ ______) dollars damages for the wrongful taking and detention thereof by the plaintiff." Finley v. Cudd,
Condition 2: Where the plaintiff has not given bond and thereby secured possession of the property, the same remaining the possession of the defendant.
If the verdict should be in favor of the plaintiff, Section 542 is mandatory that "the jury shall assess the value of the property"; and in such case the verdict should be:
"We find for the plaintiff the recovery of the possession of the property described in the complaint, the value of which is assessed at ($ ______) dollars, together with ($ ______) dollars damages for the wrongful detention thereof by the defendant" (if such damages be alleged and proved).
Under Section 600, the judgment entered upon this verdict should be:
"That the plaintiff recover of the defendant the possession of the property described in the complaint, or in case a *515
delivery thereof cannot be had, for its value ($ ______) dollars, together with ($ ______) dollars damages for the wrongful detention thereof by the defendant." Bossard v.Vaughn,
If the verdict should be in favor of the defendant, it appears from the case of Finley v. Cudd,
Condition 3: Where the plaintiff has given bond, and the defendant has secured a return of the property from the Sheriff under Section 474.
If the verdict should be in favor of the plaintiff, Section 542 is mandatory that "the jury shall assess the value of the property," and in such case the verdict should be:
"We find for the plaintiff the recovery of the possession of the property described in the complaint, the value of which is assessed at ($ ______) dollars, together with ($ ______) dollars damages for the wrongful detention thereof by the defendant" (if such damages be alleged and proved).
Under Section 600 the judgment entered upon this verdict should be:
"That the plaintiff recover of the defendant the possession of the property described in the complaint, or in case a delivery thereof cannot be had, for its value ($ ______) dollars, together with ($ ______) dollars damages for the wrongful detention thereof by the defendant." Bossard v.Vaughn,
If the verdict should be in favor of the defendant, it appears from the case of Finely v. Cudd,
"We find for the defendant the right to the possession of the property described in the complaint, together with ($ ______) dollars damages for the wrongful taking of the property by the plaintiff."
Under Section 600 the judgment should conform to the verdict. As a matter of course if the verdict should embrace a part only of the property described in the complaint, the necessary changes in the forms of verdict and judgment indicated should be made. Where the defendant interposes a counterclaim, the proceeding under Section 542, second subdivision, will be had.
The record in this case discloses that the proceeding in the original claim and delivery action falls under the third classification or condition described above. The verdict and judgment should have been in the forms indicated as appropriate to that condition. Instead they appear to have been taken and entered for the amount due upon the note, secured by the mortgage, with interest and attorney's fees. They were not only not in the alternative, but not even for the value of the property. The motion to strike the answer of the surety was practically a demurrer thereto, and in the answer it is alleged that the plaintiff "elected to take a judgment against the original obligor on his note." Such, then, is an admitted fact in the case.
Although there may be some decisions so indicating, we do not think that there is anything in Section 542 which requires the verdict, under any of the conditions named, to be in the alternative; that is, for the possession of the property or for its value stated, in case a delivery cannot be had. What that section requires is that under certain conditions, including the condition that exists in the present original *517
proceeding, "the jury shall assess the value of the property," along with their verdict for the plaintiff; this is as mandatory as a statute could make it. Nor do we think that there is anything in Section 600 which requires the judgment. entered upon such verdict, to be in the alternative. That section provides that, where the verdict is in favor of the plaintiff, the judgment may be: (1) For the possession, which is appropriate where the plaintiff has given bond and taken possession; or (2) for the recovery of possession, which is appropriate where the plaintiff has not given bond, or where he has, and the defendant has obtained redelivery; or (3) for the value of the property in case a delivery cannot be had, which is appropriate to either of the conditions named in (2); and (4) for damages both punitive and actual for the detention — evidently allowing the plaintiff to enter up judgment in such form as will be appropriate to the condition which the trial has developed. If the plaintiff has given bond and has possession of the property at the time of the trial, what sense would there be in requiring him to enter a judgment in the alternative? A judgment for the possession, fixing his right to retain the property, is all that should be required in reason. Or if he has not given bond (or has, and the defendant has recaptured the property), and it appears at the trial that the defendant has consumed, disposed of, or destroyed it, what sense would there be in requiring the plaintiff to enter judgment for the recovery of the possession of that which no longer is in existence? A judgment for the value of the property is all that should be required in reason. If it should appear that the defendant still retains possession of the property, then a judgment in the alternative would be entirely proper, protecting the right of the plaintiff "to regain possession of his property in specie, if practicable," and the right of the defendant in "giving him the alternative of returning the property to its rightful owner, and only paying such damages for its detention *518
as may be determined to be proper." Finley v. Cudd,
In Bossard v. Vaughn,
"The verdict was in the alternative, and in it the jury assessed the value of the property. Thus was fixed the right of plaintiff to have the property, or its value, if he could not find it, and the right of the defendant to deliver the property rather than pay the value if he chose to do so."
The verdict in the case at bar, for so many dollars, is void for two reasons: (1) It does not find for the plaintiff the recovery of the possession of the property; (2) it does not assess the value of the property.
If the verdict had been regular in these particulars and the judgment had been entered for so many dollars, not in the alternative, the Court might well presume that the facts justifying such a judgment were disclosed upon the trial; that is, that the property had been consumed, disposed of or destroyed by the defendant and that a judgment for the recovery would have been vain and idle. But it not only appears that the verdict was not for the possession of the property, and that its value was not assessed, but that the money verdict was for the amount due upon the note, which is proper only in cases of counterclaims under the second subdivision of Section 542.
In Gibbes v. Rivers,
"The finding in the claim and delivery action of the amount due on the notes was not intended to and did not authorize the entry of judgment for that amount, and no judgment therefor was entered. No authority is thereby given for the entry of a personal judgment * * * against the mortgagor for that amount."
The verdict and judgment in this case, not complying with the statute in any particular, must be declared null and void.
It seems hardly necessary to state that the surety, being a volunteer, without compensation, is entitled to stand upon the strict terms of his obligation: He assumes no engagement not "nominated in the bond." Looking to the bond then, we find that the surety undertook, for the principal, "the delivery of said property to the plaintiff, if such delivery be adjudged, or for the payment to the plaintiff of such sum as may be recovered against the defendant in this case." (It will be noted that the condition of the bond is not stated in the exact words of Section 474 of the Code of 1922; the words "for any cause" being eliminated, and the words "in this case" being added. The alterations however do not materially affect the question.)
In Jaggar v. Lalance, 8 Daly (N.Y.), 251, it is held that where no delivery was adjudged, but a money judgment simply was rendered against the defendant, the surety upon a redelivery bond was not liable as for a breach of his bond conditioned as the statute provides.
In Reno v. Woodyatt,
In Michealson v. Surety Co., (Sup.), 199 N.Y. Supp., 79, decided in 1923, it is held that where a judgment in claim and delivery did not award the defendant possession of the chattel as required by the statute, but merely a money judgment, the sureties on plaintiff's bond to procure a return of the chattel in case possession is adjudged to defendant are not liable.
In Levine v. Dohl,
In Lewin v. Stein,
In Cummings v. Badger,
In Larson v. Hanson,
"In an action of claim and delivery, for the purpose of regaining possession of the property, the defendants, with sureties, executed a redelivery undertaking conditioned as provided by section. * * * Plaintiffs recovered merely a money judgment against the defendants. In an action against the sureties on such undertaking, the only breach of its conditions alleged in the complaint being the nonpayment *521 of such judgment, * * * the complaint fails to state a cause of action."
The precise point is also decided in the case of New EnglandCo. v. Bryant,
"The liability of the sureties could not be changed or enlarged by any act of the plaintiff in accepting or entering a judgment not authorized by the statute. Their contract was only to pay the value of the property in case a return could not be had. The judgment entered could not be satisfied by a return of the property, even if the sureties or their principal had it ready and in condition to be returned. It could only be satisfied by the payment of money. That is not the judgment which the sureties obligated themselves to satisfy."
In Farmers' Bank v. Ferguson,
In Cobbey on Replevin, p. 755, it is said:
"A replevin bond, in replevin of attached property, is not a security for the debt sued on, but is a security for the *522
forthcoming of the very property levied on or its value. If the very property be abandoned, by the plaintiff, if he take no judgment of foreclosure upon it but a personal money judgment only, then the sureties are released. It is not like taking a nonsuit as to an ordinary surety, which may be followed up by a new suit. It is a clear abandonment of the cause of action as against the obligors on the replevin bond. The liability of the obligors does not arise until after judgment against the debtor. They did not stand good for the debt but for the property, and as the judgment ignores the property, there is nothing in the judgment for them to respond to. It is also necessary to show that the debt cannot be made out of the principal before the sureties can be made to respond. Of course this is only in cases where a return is possible, and does not apply to cases where return cannot be had, and in North Carolina a different rule has been laid down. The Court says that an agreement to dispense with a return and take a money judgment is binding on the sureties, but the first is the better rule" — citingToland v. Swearingen,
In Moore v. Sanders,
"Claim and delivery is an action to determine the right to the possession of personal property. When the right to the *523 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. * * * The judgment in such cases is for the possession of the chattels and damages for the wrongful taking or withholding of possession. * * * 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."
But, it is contended, the bond obligated the surety, in the language of the statute "for the payment to him [the plaintiff] of such sum as may for any cause be recovered against the defendant," and that the surety is concluded by the judgment, although it may be void for the reasons above stated. Passing by the fact that the words "for any cause" are omitted from the present bond, the phrase necessarily limits the recovery to such sum as may lawfully be adjudged due to the plaintiff in a claim and delivery action. It would hardly be contended that the surety would be liable for any cause of action which might be lugged into the case, possibly by collusion between the plaintiff and the principal obligor.
In New England Co. v. Bryant,
"The expression, `such sum as for any cause may be recovered against the defendant,' must be construed as meaning such sum as may, in connection with a judgment for a delivery of the property, be recovered as damages for its detention, or, perhaps, for any injury to it."
In Dickson v. Bickershoff,
In McKee v. Pope, 57 Ky. (18 B. Mon.), 548, it is held that the liability of a defendant on a bond executed to the *524 plaintiff "to perform the judgment of the Court in this action" extends only to such judgment as the Court may render on the claim for possession of the property sued for.
It seems too plain for argument that the surety's obligation was simply to indemnify the plaintiff from any loss she might sustain by being compelled to release the property upon which she had a lien, to the possession of the defendant, pending the claim and delivery proceedings. She had a mortgage upon a certain automobile; it was past due; she had the legal right to take possession of the car, sell it at public outcry, apply the net proceeds to her debt, and sue the defendant for such deficiency as might arise. The defendant obstructs that program by giving bond and recapturing the car. The surety says to the plaintiff:
"You shall not suffer by that recaption; if the Court decides that you are entitled to the possession of the car, I will see that it is returned to you, or pay you the value of the car as of the time of the recaption, with such damages as may be adjudged against the defendant for the wrongful detention."
It seems indisputable that the surety's obligation does not mature until the condition of the bond has been fulfilled; an adjudication by the Court of a delivery of the car to the plaintiff, with an assessment of the value and damages. No such adjudication appears to have been made; instead, a money judgment for the debt secured by the mortgage, which the surety in no sense undertook to pay.
The clearly defined obligation of the surety carries with it equally clearly defined rights.
If the verdict and judgment had been as they ought to have been, for the recovery of the possession of the car or for its value, so much, with damages for the detention, the surety would have had the right, in satisfaction of that judgment, to deliver the car, in unimpaired condition, to the plaintiff and pay the damages; or if the car could not be delivered, to pay the assessed value with damages, which could *525 only be the interest upon the assessed value (in the absence of punitive damages).
In Gibbes v. Moore,
"The defendants [parties to redelivery bond] had the right to deliver the property in kind in satisfaction of the judgment."
In Finley v. Cudd,
"It seems to us that the real object of the section of the Code under which this question arises is of a twofold character — first, to protect the rights of the true owner to regain possession of his property in specie, if practicable; second, to save the party who may be innocently, but illegally, in the possession of the property of another from being compelled to pay such value as the jury may see fit to place upon the property, by giving him the alternative of returning the property to its rightful owner, and only paying such damages for its detention as may be determined to be proper."
As it is, the judgment being for a specific sum of money, the surety is deprived of this right; he can satisfy the judgment only with money, whereas his obligation gave him the alternative.
In Archer v. Long,
"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." *526
That was a case where the defendant had a verdict. The same rule should be applied for the benefit of the defendant when the plaintiff has a verdict.
In McLeod v. Craig (Tex.Civ.App.),
In Ward v. Hood,
In Lutes v. Alpaugh,
The difference between the obligation of the surety to deliver the car or its value, and the proposed obligation to pay the judgment upon the debt, may under circumstances be very great. The debt may be many times the value of the recaptioned property; the hardship and injustice of requiring the surety to pay the debt, and not allowing him to satisfy the judgment by delivering the property or its value, are apparent.
Another consideration: If the surety be compelled to pay the amount of the judgment upon the debt, what recourse has he upon the mortgaged property? If he should be subrogated to the rights of the mortgagee against the property, it is practically certain that it would not compensate him for the payment of the judgment in a much larger amount.
The case of Joplin v. Carrier,
The case of Reynolds v. Phillips,
It would seem that when the plaintiff claims the property by virtue of a past-due mortgage, and there is no evidence of a disposition or other conversion of it by the mortgagor, he would be strictly confined to the action of claim and delivery to secure possession of the property in order to subject it to his lien by public sale, and could not exercise an election to sue the mortgagor as for a conversion.
In the case of Bolt v. Milam,
In the case of Parish v. Smith,
"The sureties were liable to the full extent of the verdict properly rendered under the pleadings in the action against *529 R.J. Smith. They would have been liable to the full extent if the verdict had been rendered simply for a certain sum of money. We do not see why they should complain, when they were allowed to return the property described in the complaint instead of paying the value thereof assessed in money."
The verdict was not "rendered simply for a certain sum, of money"; the effect of such a verdict was not a question in the case, and the underscored statement is obiter. If the statement means that in an action of claim and delivery, where, under the statute, the main issue is the right of possession, and the verdict for the plaintiff must contain an assessment of the value of the property and damages, a verdict "simply for a certain amount of money," without finding the possession for the plaintiff and without indicating that the "certain sum of money" is the assessed value of the property or damages, is sufficient, we think that it is misleading and incorrect.
What had been said does not mean that the surety is discharged from his obligation upon the bond; it means that under that bond he is not liable for the judgment entered upon this particular verdict, founded as it is upon the debt.
The plaintiff has been compelled by the action of the surety to forego for the time being what might have been full security for her debt. She was at any rate entitled, but for his intervention, to subject the property to her debt. He has obligated himself to put her back in substantially the same position as she then occupied. He is still liable upon his bond therefor; that is, to return to the plaintiff the automobile in substantially the same condition as it was in when W.M. Willimon recaptioned it from the Sheriff, or to pay her for its then value with damages, if any. He, however, cannot be held liable upon his bond until it shall have been adjudicated by a verdict and judgment in the main cause that the plaintiff is entitled to recover possession of the *530 automobile or in the event that it cannot be delivered for its value with damages if any.
The plaintiff should be given leave to apply to the Circuit Court for an order vacating the verdict and judgment heretofore rendered in the claim and delivery action and reopening the case for a jury trial. If upon that trial the verdict should be in favor of the plaintiff, its form should be as indicated above under condition 3, and the judgment should be in the form also indicated.
The judgment of this Court is that the order striking out the answer of the defendant R.C. Willimon be reversed, and that the case be remanded to the Circuit Court for trial; that the plaintiff have leave to apply to the Circuit Court for an order vacating the verdict, and judgment in the original claim and delivery action, so far as the defendant R.C. Willimon is concerned, upon the ground that as to him they are nullities, and reopening the case for a jury trial upon the sole issues: (1) What was the value of the automobile at the time it was delivered to W.M. Willimon by the Sheriff, under the redelivery bond in question? (2) What amount of damages has the plaintiff suffered by reason of the detention of the automobile by the defendant W.M. Willimon, since demand was made upon him by the plaintiff therefor? The form of the verdict in that trial and of the judgment entered upon it should be as indicated in condition 3 herein.
The present action upon the bond shall await such trial, with leave to the plaintiff to serve upon defendants' attorneys thereafter a supplemental complaint setting forth the result of same, with such amendments as will conform to the conclusions herein.
MESSRS. JUSTICES WATTS and FRASER concur.
Dissenting Opinion
I am unable to agree that the proposition upheld in the majority opinion warrants a reversal. Aside from the consideration that the point sustained is not properly raised by the exceptions. I *531 do not think the conclusion reached is in accord with certain prior adjudications of this Court, which I see no sound reason for discrediting.
In the case of Reynolds v. Philips,
"The statutory action of claim and delivery is practically a combination of the former actions of replevin and trover. Replevin was an action to recover the possession of specific chattels, together with damages for their unlawful detention. Trover was an action for damages arising out of the unlawful conversion of personal property. In so far as the plaintiff's action sought to recover the possession of the chattels it partook of the nature of replevin; but in so far as it claimed the value of the property and damages it resembled the action of trover. The action of claim and delivery is even more assimilated to the action of trover than to the action of replevin. Tittle v. Kennedy,
"The plaintiff has the right to elect whether he will bring his action to recover possession of the specific chattel, or for damages for the unlawful conversion. Richey v. Du Pre,
Under the foregoing views, it would seem clear that the plaintiff in her former action of claim and delivery had the right to elect to recover a money judgment for the amount of damages sustained as the result of an unlawful conversion of the property in question. Where the plaintiff is a mortgage creditor, the amount of damages thus sustained obviously could neither exceed the value of the property nor the balance due on the mortgage debt, which latter amount would represent the plaintiff's special interest in the property.Greene v. Washington,
MR. CHIEF JUSTICE GARY concurs.