Opinion
12829
February 7, 1930.
Before DENNIS, J., Charleston, October, 1928. Affirmed.
Action by Charles L. Mullally, as substituted trustee, against the Garner Realty Company and another. From an adverse judgment, defendants appeal.
Judge Dennis' order overruling demurrer was as follows:
"This matter comes before me upon a demurrer to the complaint interposed by the defendant, Lucy C. Huiet. The first and second grounds of the demurrer are so clearly untenable as to require no comment, and they were not seriously argued by the defendant's attorney at the hearing.
"As to the third ground of the demurrer, it is sufficient to refer to Section 356 of Volume 1 of the Code of 1922, defining a trustee of an express trust and his powers. It appears from the allegations of the complaint that the defendant Huiet entered into a contract of guaranty with the South Carolina Loan Trust Company as trustee. The name of the beneficiary of the trust was undisclosed, but it appears from the complaint that the beneficiary was whoever might own the bond secured by the mortgage. Charles L. Mullally, the plaintiff herein, as substituted trustee, occupies the same position as the South Carolina Loan Trust Company, as trustee, formerly occupied. He therefore represents the owner of the bond secured by the mortgage sought to be foreclosed, and is entitled to bring suit on the guaranty in these foreclosure proceedings.
"It is therefore ordered that said demurrer be and it is hereby overruled. Further ordered, that the defendant Lucy C. Huiet have 10 days after notice to her attorneys of the filing of this order within which to serve her answer to the complaint."
Messrs. Huger, Wilbur, Miller Mouzon, for appellants, cite: Assignment of obligation carries with it mortgage or deed of trust given to secure its payment: 31 S.C. Eq., 582; 14 S.C. 142; 110 S.C. 99; 10 S.C. 224; Sec. 356, Vol. I, Code 1922, inapplicable here.
Messrs. Julian Mitchell and Ernest L. Visanska, for respondent, cite: Demurrer: Sec. 401, Code Proc., 1922; 144 S.C. 64; Sec. 356, Code Proc., 1922; 76 S.C. 476; 13 S.C. 430; 64 S.C. 509.
February 7, 1930. The opinion of the Court was delivered by
Judge Dennis' order is satisfactory to the Court. Let it be reported, and judgment affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE, STABLER and CARTER concur.