Welborn v. Cobb
| Decision Date | 13 September 1912 |
| Parties | WELBORN v. COBB et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Anderson County; Ernest Gary and Geo. W. Gage, Judges.
Action by E. H. Welborn against W. W. Cobb and another. From a judgment for plaintiff, defendant J. W. Dickson appeals. Affirmed.
Bonham Watkins & Allen and Leon L. Rice, all of Anderson, for appellant. Martin & Earle, of Anderson, for respondent.
On August 24, 1908, the defendant Dickson conveyed to the defendant Cobb a tract of land, described in the deed as containing 138 acres, more or less. The purchase price was $4,800, $1,000 of which was paid, and, for the balance, Cobb gave Dickson seven notes for $500 each, and one for $300, due at intervals of one year, with interest from date, and secured them by a mortgage of the land. The mortgage contained a stipulation that, if either of the notes was not paid at maturity, the whole debt should become due. On January 6, 1909, Dickson executed an assignment of these notes and mortgage, with others, to the plaintiff, in which he stipulated: "The notes to be indorsed without recourse on me." But an instrument of writing, signed by Dickson, under seal, and bearing date January 11, 1908 appears in the record, of which the following is a copy "In view of the fact that the papers I am this day turning over to E. H. Welborn, as part payment for land deal made by and between the said F. H. Welborn and myself, have not as yet been examined by Welborn's attorney, I, J. W. Dickson, do hereby guarantee the papers, held by me and given by W. W. Cobb and J. P. Fortune, to be good and valid, and I hereby obligate myself to protect the said E. H. Welborn against any losses or otherwise pertaining to the above said papers of W. W. Cobb and J. P. Fortune."
In May, 1910, Welborn commenced this action against Cobb and Dickson for foreclosure. In addition to the facts above stated, the complaint alleged that the note which first became due was not paid at maturity, and that, under the stipulation of the mortgage above mentioned, the whole debt thereupon became due; that by consent of plaintiff Cobb had sold part of the land, and paid the proceeds on the mortgage debt, under agreement with plaintiff that such payment, though it exceeded the amount then due on the notes, according to their terms, should not affect his right to foreclose, which had already accrued, under the stipulation contained in the mortgage. Plaintiff alleged, further, that he was informed and believed that the defendant Cobb claimed the right to set off against the mortgage debt the sum of $845, with interest thereon from August 24, 1908, because of a deficiency in the acreage of the tract conveyed to him by Dickson, on the ground that Dickson had falsely represented to him that it contained 138 acres, when it contained only 113, and to the extent of the shortage the consideration of the notes and mortgages had failed. Dickson demurred to the complaint on numerous grounds, which need not be repeated, as they will be considered in what we shall say.
One of the grounds chiefly relied upon is that the complaint states no cause of action against him, and therefore he is improperly made a defendant. He contends that the complaint is fatally defective in its allegations as to him, because it is not alleged that the land still owned by Cobb is not worth and will not bring enough to pay the balance due plaintiff, or that plaintiff is in danger of any loss on the notes and mortgage. As Dickson guaranteed the notes and mortgage, and obligated himself to protect Welborn from loss on them, and as his principal had defaulted, we do not see upon what ground it can be contended that Welborn could not maintain this action against both Cobb and Dickson, without making the allegations suggested. Plaintiff was under no obligation, by the terms of his contract, to exhaust his remedies against Cobb before resorting to Dickson, but had the right to proceed against both at the same time and in the same action. Section 188 of the Code expressly covers the objection made by defendant. It provides: "If the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases." See, also, Pom. Rem. § 334; Wiltsie Mtge. Foreclosure, §§ 77, 109; 27 Cyc. 1565.
The next contention pressed under the demurrer is that several causes of action were improperly united in the complaint. This contention seems to be based upon the idea that the plaintiff sets up, in his complaint, a cause of action in favor of Cobb against Dickson for the deficiency in the acreage of the land, a cause of action with which, as Dickson contends, plaintiff has no concern; and he complains, further, that, if Cobb should be compelled to bring said cause of action against him in a separate action, he would be entitled to trial by jury, which has been denied to him by reason of his having been joined as a defendant, and compelled to litigate the issue between Cobb and himself in this action. Appellant has evidently failed to analyze and clearly comprehend the complaint. It states only one cause of action. True, the plaintiff does therein anticipate the defense which he was informed Cobb would make, by alleging the facts out of which it arose. While these facts were not strictly necessary to plaintiff's cause of action, because, as we have seen, the allegation that Dickson guaranteed the notes and mortgage was sufficient to make him a proper party defendant, still they were not entirely irrelevant, because they showed that, if Cobb established his defense, the validity of the notes and mortgage would be impaired, and that Dickson should thereupon be required to make good his guaranty. It appears, therefore, that plaintiff did not allege these facts, as appellant assumes, for the purpose of stating a cause of action which Cobb had against Dickson, and which he could maintain through the plaintiff, and in this action, or not at all. In this connection it may not be out of place to say that the decision of this court in the case of Latimer v. Wharton, 41 S.C. 508, 19 S.E. 855, 44 Am. St. Rep. 739, seems to have been misunderstood, at least to some extent, in the court below.
That case does hold that in so far as the equity of a purchaser of land to be relieved from payment of the purchase money, or any part thereof, depends upon a mere failure of consideration, such equity can be set up only as a defense to an action for the purchase money. But that case does not hold, and we think no case can be found in our Reports which does hold, that a failure...
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