Beasley v. Newell

Citations

• 40 S.C. 16
• 18 S.E. 224
• 1893 S.C. LEXIS 10

Syllabus

<p>]. Surety — Action on Indemnity. — A surety who holds a mortgage or other collateral security given him to indemnify him against loss by reason of his suretyship, may proceed to enforce such security so soon as he becomes endangered and before actual payment by him.</p> <p>2, Mortgaqe — Construction—General Intent. — A mortgage deed recited that the mortgagees were sureties for the mortgagor, and for the purpose of securing the mortgagees harmless, the mortgagor conveyed to the mortgagees a tract of land by a mortgage in the usual form, but concluded with a power of sale, which, literally construed, was to be exercised only in the event that the premises could be sold for more than the amount which the mortgagees “have paid,” returning the overplus to the mortgagor. Held, that the concluding clause did not destroy the general intention of the mortgage, but was meant to provide only for the contingency of a surplus.</p> <p>3. Mortgage to Sureties — Rights op Creditor. — A creditor being entitled to avail himself of the securities held by the sureties of his debtor, a mortgage such as this may be enforced by the creditor, even though the sureties, by reason of insolvency and non-residence, could never be required to pay the debt.</p> <p>4. Probate Court — Jurisdiction—Estoppel.—A trustee and a purchaser under him cannot question the jurisdiction of the Court of Probate to render a judgment against the trustee, where he raised no such question in that court, and did not appeal from its decree.</p> <p>5. Appeal. — A question decided on Circuit, and no exception taken thereto, cannot be considered by this court.</p> <p>8. Parties — Amendment—Trust Funds. — One of the sureties being dead and his estate insolvent, and the other beyond seas, the beneficiaries of the trust fund should be made parties to the cause; and, also, the trustee, if it is intended to surcharge or falsify the account taken in the Court of Probate.</p>