The opinion of the Court was delivered by
Mr. Chief Justice Gary.
The record contains these statements:
“This is an action brought by the plaintiff against the defendant commenced on the 21st day of September, 1922, for the foreclosure of two mortgages, one set out in the first cause of action alleged to have been made by Julia R. Carroll to W. J. Platt, dated 29th day of December, 1902, and one made by Francis F. Carroll to W. J. Platt, álleged to have been made on the 22d day of November, 1906, both mortgages upon the same tract of land, to wit, a tract of 100 acres of land in Barnwell County, conveyed to the defendant by Julia R. Carroll, and now owned by the defendant. The allegations of • the second cause of action are not involved in this appeal. The only issue involved in this appeal is whether the mortgage of real estate set out in the first cause of action can be foreclosed for an amount in excess of the penalty of the bond set forth in the first cause of action, where the aggregate amount of principal and interest exceeds the penalty of the bond.”
The plaintiff alleges in his complaint:
“First, for a first cause of action:
“(l)That on the 29th day of December, 1902, Julia R. Carroll made and delivered to W. J. Platt her bond, in the penal sum of two thousand dollars, conditioned for the payment to the said W. J. Platt, his certain attorneys, executors, administrators, and assigns the full and just sum of one thousand dollars on the 1st day of January, 1905, with interest thereon from date at the rate of eight per cent, per annum until paid, interest payable annually, interest to bear interest at eight per cent, per annum, if not paid when due.
“(2) That on the 29th day of December, 1902, the said Julia R. Carroll, for the better securing the payment of the said bond, made, executed, and delivered to the said W. J.
Platt her mortgage deed, and thereby conveyed to the said W. J. Platt, by way of mortgage, the tract of land therein described as follows, to wit: All that * * * tract of land * * * containing one hundred acres (100). [Further description omitted in this statement.]
“(3) That said mortgage, in due time, was duly recorded by the Register of Mesne Conveyance for Barnwell County.
“(4) That the said mortgage deed contained a condition in substance that, if the said Julia R. -Carroll should well and truly pay, or cause to be paid, unto the said W. J. Platt the said debt or sum of money aforesaid, with interest thereon, if any should be due, according to the true intent and meaning of said bond and conditions thereunder written, all sums of money provided to be paid by the mortgagor, her heirs, executors, administrators, or assigns, under the covenants of said mortgage deed, then said mortgage deed should cease, determine, and be utterly void and null; otherwise, it should remain- in full force and virtue. Said mortgage deed also contained a covenant as follows: 'And it is further agreed and covenanted by and between said parties that until the debt hereby secured be paid, said mortgagor, her heirs, executors, administrators, or assigns shall and will pay all taxes on the property hereby mortgaged, when due and payable, and in case she fail to do- so the said mortgagee, his executors, administrators, or assigns, may pay said taxes, together with any costs or penalty incurred thereon or any part thereof, and reimburse himself for same under this mortgage.’ Said mortgage deed also contained a covenant as follows: 'And it is further agreed and covenanted between said parties, that in case the debt secured by this mortgage, or any part thereof, is collected by suit or action, or this mortgage be foreclosed or put into the hands of an attorney for collection, suit, or action, or foreclosure, the said mortgagor, her heirs, executors, administrators, or assigns shall be chargeable with all costs of collection, including ten per cent, of the prin
cipal and interest on the amount involved as attorney’s fees, which shall be due and payable at once, which charges and fees, together with all costs and expenses are hereby secured and may be recovered in any suit or action hereupon or hereunder.”
The ¡complaint contains other allegations ¡appropriate for the foreclosure of the mortgage deed, including an allegation that the said bond and mortgage have been placed in the hands of an attorney for collection and suit has been brought thereon. The bond is in the penal sum of two thousand dollars and contains this condition:
“The condition of the above obligation is such that, if the above-bound Julia R. Carroll, her heirs, executors, and administrators, shall and do well and truly pay, or cause to be paid, unto the above-named W. J. Platt, her certajin attornej^s, executors1, ^administrators, or 'assigns, the full and just sum of one thousand ($1,000.00) dollars on the 1st day of January, 1905, with interest thereon from date hereof at the rate of eight per cent, per annum until paid, interest payable annually, interest to bear interest at eight (8) per cent, per annum if not paid when due, it is hereby agreed that the obligator have the privilege of paying this bond on the first day of January, 1904, if she so elects without fraud or further delay, then the obligation to be void and of none effect, or else to remain in full force and virtue: Provided, however, that, should any proceedings be necessary to collect this bond, a commission of ten (10) per cent, upon the amount due shall be added to cover attorney’s fees for collecting the same.”
The mortgage deed also contains this clause:
“Whereas, I, the said Julia R. Carroll, in and by my certain bond or obligation bearing date the 29th day of December, 1902, stand firmly held and bound unto W. J. Platt in the penal sum of two thousand dollars, conditioned for the payment of the full and just sum of one thousand ($1,000.00) dollars on the 1st day of January, 1905, with
interest thereon, from date hereof at the rate of 8 per cent, per annum until paid. Interest payable annually. Interest to bear interest at 8 per cent, per annum if not paid when due. It is hereby agreed that the obligor have the right to pay the debt this mortgage is given to secure, on January 1, 1904, as in and by the said bond and condition thereof, reference being thereunto had, will more fully appear:
“Now, know all men that I, the said Julia R. Carroll, in consideration of the said debt and sum of money aforesaid, and for the better securing the payment thereof to the said W. J .Platt according to the condition 'of the said bond.”
The mortgage also’ contains the covenants set out herein-above in paragraph 4 of the complaint. The complaint prays for the foreclosure of both mortgages.
The defendant answered the first cause of action that, while he admitted that there was due upon the bond, aggregate principal and interest, an amount more than the amount of the penalty of the bond, $2,000.00, that there could be no recovery of any amount in excess of the amount of the penalty of the bond, $2,000.00 (there being no agreement to pay any excess of said penalty).
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The opinion of the Court was delivered by
Mr. Chief Justice Gary.
The record contains these statements:
“This is an action brought by the plaintiff against the defendant commenced on the 21st day of September, 1922, for the foreclosure of two mortgages, one set out in the first cause of action alleged to have been made by Julia R. Carroll to W. J. Platt, dated 29th day of December, 1902, and one made by Francis F. Carroll to W. J. Platt, álleged to have been made on the 22d day of November, 1906, both mortgages upon the same tract of land, to wit, a tract of 100 acres of land in Barnwell County, conveyed to the defendant by Julia R. Carroll, and now owned by the defendant. The allegations of • the second cause of action are not involved in this appeal. The only issue involved in this appeal is whether the mortgage of real estate set out in the first cause of action can be foreclosed for an amount in excess of the penalty of the bond set forth in the first cause of action, where the aggregate amount of principal and interest exceeds the penalty of the bond.”
The plaintiff alleges in his complaint:
“First, for a first cause of action:
“(l)That on the 29th day of December, 1902, Julia R. Carroll made and delivered to W. J. Platt her bond, in the penal sum of two thousand dollars, conditioned for the payment to the said W. J. Platt, his certain attorneys, executors, administrators, and assigns the full and just sum of one thousand dollars on the 1st day of January, 1905, with interest thereon from date at the rate of eight per cent, per annum until paid, interest payable annually, interest to bear interest at eight per cent, per annum, if not paid when due.
“(2) That on the 29th day of December, 1902, the said Julia R. Carroll, for the better securing the payment of the said bond, made, executed, and delivered to the said W. J.
Platt her mortgage deed, and thereby conveyed to the said W. J. Platt, by way of mortgage, the tract of land therein described as follows, to wit: All that * * * tract of land * * * containing one hundred acres (100). [Further description omitted in this statement.]
“(3) That said mortgage, in due time, was duly recorded by the Register of Mesne Conveyance for Barnwell County.
“(4) That the said mortgage deed contained a condition in substance that, if the said Julia R. -Carroll should well and truly pay, or cause to be paid, unto the said W. J. Platt the said debt or sum of money aforesaid, with interest thereon, if any should be due, according to the true intent and meaning of said bond and conditions thereunder written, all sums of money provided to be paid by the mortgagor, her heirs, executors, administrators, or assigns, under the covenants of said mortgage deed, then said mortgage deed should cease, determine, and be utterly void and null; otherwise, it should remain- in full force and virtue. Said mortgage deed also contained a covenant as follows: 'And it is further agreed and covenanted by and between said parties that until the debt hereby secured be paid, said mortgagor, her heirs, executors, administrators, or assigns shall and will pay all taxes on the property hereby mortgaged, when due and payable, and in case she fail to do- so the said mortgagee, his executors, administrators, or assigns, may pay said taxes, together with any costs or penalty incurred thereon or any part thereof, and reimburse himself for same under this mortgage.’ Said mortgage deed also contained a covenant as follows: 'And it is further agreed and covenanted between said parties, that in case the debt secured by this mortgage, or any part thereof, is collected by suit or action, or this mortgage be foreclosed or put into the hands of an attorney for collection, suit, or action, or foreclosure, the said mortgagor, her heirs, executors, administrators, or assigns shall be chargeable with all costs of collection, including ten per cent, of the prin
cipal and interest on the amount involved as attorney’s fees, which shall be due and payable at once, which charges and fees, together with all costs and expenses are hereby secured and may be recovered in any suit or action hereupon or hereunder.”
The ¡complaint contains other allegations ¡appropriate for the foreclosure of the mortgage deed, including an allegation that the said bond and mortgage have been placed in the hands of an attorney for collection and suit has been brought thereon. The bond is in the penal sum of two thousand dollars and contains this condition:
“The condition of the above obligation is such that, if the above-bound Julia R. Carroll, her heirs, executors, and administrators, shall and do well and truly pay, or cause to be paid, unto the above-named W. J. Platt, her certajin attornej^s, executors1, ^administrators, or 'assigns, the full and just sum of one thousand ($1,000.00) dollars on the 1st day of January, 1905, with interest thereon from date hereof at the rate of eight per cent, per annum until paid, interest payable annually, interest to bear interest at eight (8) per cent, per annum if not paid when due, it is hereby agreed that the obligator have the privilege of paying this bond on the first day of January, 1904, if she so elects without fraud or further delay, then the obligation to be void and of none effect, or else to remain in full force and virtue: Provided, however, that, should any proceedings be necessary to collect this bond, a commission of ten (10) per cent, upon the amount due shall be added to cover attorney’s fees for collecting the same.”
The mortgage deed also contains this clause:
“Whereas, I, the said Julia R. Carroll, in and by my certain bond or obligation bearing date the 29th day of December, 1902, stand firmly held and bound unto W. J. Platt in the penal sum of two thousand dollars, conditioned for the payment of the full and just sum of one thousand ($1,000.00) dollars on the 1st day of January, 1905, with
interest thereon, from date hereof at the rate of 8 per cent, per annum until paid. Interest payable annually. Interest to bear interest at 8 per cent, per annum if not paid when due. It is hereby agreed that the obligor have the right to pay the debt this mortgage is given to secure, on January 1, 1904, as in and by the said bond and condition thereof, reference being thereunto had, will more fully appear:
“Now, know all men that I, the said Julia R. Carroll, in consideration of the said debt and sum of money aforesaid, and for the better securing the payment thereof to the said W. J .Platt according to the condition 'of the said bond.”
The mortgage also’ contains the covenants set out herein-above in paragraph 4 of the complaint. The complaint prays for the foreclosure of both mortgages.
The defendant answered the first cause of action that, while he admitted that there was due upon the bond, aggregate principal and interest, an amount more than the amount of the penalty of the bond, $2,000.00, that there could be no recovery of any amount in excess of the amount of the penalty of the bond, $2,000.00 (there being no agreement to pay any excess of said penalty). The execution of the bond and mortgage and the fact of plaintiff being the qualified executor of W. J. Platt were admitted.
The only exception is as follows:
“Because his Honor erred, in that he decided and held that the'answer of the defendant to the first cause of action, wherein defendant alleged that a recovery could not be had under the alleged mortgage for an aggregate amount of principal and interest to an amount in excess of the amount of the penalty of the bond which the alleged mortgage was executed to secure, $2,000.00, did not constitute a defense to the said first cause of action of the complaint, and sustained a demurrer to said defense; whereas, his Honor should have decided and held that the bond which said mortgage was executed to secure did not and could not create any monetary liability beyond the amount of the penalty
of said bond, $2,000.00, and that the alleged mortgage and the covenant therein did not and could not create any charge or lien on the mortgaged property for an aggregate amount of principal and interest in excess of the amount of the penalty of the bond which said mortgage was executed to secure, to wit, $2,000.00, the highest monetary liability thereon, and should have overruled the said demurrer and sustained defendant’s answer as valid defense to said first cause of action to the extent and in the respect mentioned in said answer.”
Under the well recognized - doctrine prevailing in this State, if the bond had merely provided that the obligor should be bound, in the penal sum of $2,000.00, upon the condition that the obligor should pay to the obligee the sum of $1,000.00, at the time specified in the bond, with -interest from the date thereof, then the obligqr would not have been liable beyond the penalty of the bond. But those are not the only material facts in the case. Not only are there other provisions in the bond, but likewise in the mortgage, which we have set out, that show that it was the intention, not only of the bond, but also of the mortgage, that liability should 'not be limited to the amount of the penalty, but -that there might be a recovery even beyond the penalty, if the provisions of the bond and those of the mortgage so required, in order to satisfy them. The authorities upon which the respondent’s attorneys rely fully sustain these views, and his Honor, the presiding Judge, properly sustained the demurrer. Appeal dismissed.
Messrs. Justices Watts, Fraser, Cothran, and Marion concur.