Citizens' Sa v. Bank Of Timmons-ville

• Decision Date: 31 May 1923
• Docket Number: (No. 11244.)
• Citation: 117 S.E. 715
• Court: South Carolina Supreme Court
• Parties: CITIZENS' SAV. BANK OF TIMMONS-VILLE v. LYNCH.

117 S.E. 715

CITIZENS' SAV. BANK OF TIMMONS-VILLE

v.LYNCH.

(No. 11244.)

Supreme Court of South Carolina.

May 31, 1923.

Appeal from Common Pleas, Circuit Court of Florence County;' W. C. Cothran, Special Judge.

Action by the Citizens' Savings Bank of Timmonsville against J. C. Lynch. From order overruling demurrer to complaint, defendant appeals. Affirmed.

McNeill & Oliver, of Florence, for appellant.

Arrowsmith & Muldrow, of Florence, for respondent.

WATTS, J. This is an appeal from an order of Hon. W. C. Cothran, special judge, overruling a demurrer interposed by defendant to the complaint in this cause, and the exceptions challenge the correctness of this order.

The demurrer admits the truth of the allegations of the complaint. Allegations 8 and 9 of the complaint are:

"VIII. That by indorsement upon the said bond and mortgage the defendant, J. C. Lynch, bound himself, his executors and administrators for the full payment of the said indebtedness according to the true intent and meaning of the said bond and mortgage.

"IX. That on or about the 25th day of January, 1916, the said J. C. Lynch, without the knowledge or consent of the plaintiff, executed to the said A. M. Hill full receipt, satisfaction, and cancellation of the said mortgage, and which has been entered upon the face of the mortgage or the record thereof in the office of the clerk of court of common pleas for Florence county."

It will be seen that the allegation is that the defendant, by indorsement of bond and mortgage, bound himself to pay the same, and by his wrongful act in canceling the mortgage on record damaged the plaintiff.

The demurrer was properly overruled, and the exceptions are overruled, with leave, however, to either party to make A. M. Hill, a party to this suit, in order that there may be a complete determination of all the issues involved, if they may be so advised.

Judgment affirmed.

GARY, O. J., and FRASER, COTHRAN, and MARION, JJ., concur.

COTHRAN, J. I concur upon the further ground that the assignor impliedly engagednot to collect the mortgage; that if he did so he would become a trustee for the assignee. His satisfaction of the mortgage was an acknowledgment of the trust