McDowall v. Reed , 28 S.C. 466 ( 1888 )

The opinion of the court was delivered by

Mr. Justice McGowan.

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 August (1887) the same plaintiff had notice of a rule served on the executor to show cause why the judgment should not be revived, which was heard and granted by Judge Witherspoon. To both these applications the executor made vigorous defence, in resisting the orders prayed for. He admitted that he was executor of the will of John P. Reed, as an individual, but not executor or successor of John P. Reed, trustee, and is not concerned in or responsible for any judgment that may exist against John P. Reed, as trustee; and that said Reed, many years before his death, was released and discharged from the office of trustee, and Joseph D. Dunlap appointed trustee in his place. In both the applications the defence was the same, and was overruled in both.

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 matter touching the trust. But if he chooses to bind himself by a personal covenant in any such matter, he will be liable at law for a breach thereof, although he may in the instrument containing the covenant describe himself as covenanting as trustee: for the covenant is still operative as a personal covenant, and the super-added words are but a desoriptio persona.” 2 Story Eq., § 975; Duval v. Craig, 2 Wheat., 45 ; Tobin v. Addison, 2 Strob., 4; Barrett v. Cochran. 11 S. C., 34. In the case from Strobhart, the court said :. “The judgment against Brown, guardian, is no more than a judgment against him without that addition ; for that is only a desoriptio persona. No judgment against him as guardian can have the effect to charge either the estate or the person of Miss Owens (the ward). * * * He was responsible to every one contracting with him, and not the estate of his ward. It was his duty to pay Saul’s debt, and then submit it as a charge against his ward in his accounts, and if proper it would be allowed, or otherwise rejected,” &c.

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.

The judgment of this court is, that the orders of Judge Wallace and Judge Witherspoon be affirmed.