Porter v. J. H. Hydrick Realty Co. , 134 S.C. 34 ( 1926 )

March 5, 1926. The opinion of the Court was delivered by This action was brought by the plaintiff in the Court of Common Pleas for Lexington County, for the foreclosure of a mortgage of real estate, executed in her favor by the appellant, J.H. Hydrick Realty Company, to secure the payment of a bond in the sum of $4,500. The defendant Mary L. Hydrick (who did not appeal), a judgment creditor of the appellant, was made a party to the action.

An order of foreclosure and sale, consented to in writing by all the parties, was made by his Honor, C.M. Efird, special presiding Judge, at Saluda, December 13, 1923. The order, inter alia, provided that the plaintiff have judgment against the defendant, J.H. Hydrick Realty Company, for the sum of $5,580.75; that the Special Referee sell the mortgaged premises at public auction on the first Monday in January, 1924, for cash; and "that the said H.L. Harmon, Special Referee, advertise and give notice of the time and place of such sale as required by law; that the said premises be sold in the town of Lexington, county of Lexington, State of South Carolina, at the usual time and place as is customary for such sales; that he do execute to the purchaser or purchasers a deed of the premises so sold, and that the purchaser be let into possession of said premises on the production of said deed and a certified copy of the order confirming the report of the sale; that the plaintiff or any other party to this action may become a purchaser at such sale, and should the purchaser fail to comply with the terms thereof, the said H.L. Harmon, Special Referee, may, without further order of this Court, sell the said premises upon some subsequent sales day, exclusive of sales days in February, March, April, May, June, July, August, and September, and at the risk of the former purchaser."

Pursuant to the directions contained in the order of sale, the Special Referee on sale day in January, 1924, offered the mortgaged premises for sale at Lexington courthouse, and the property was struck off to J.H. Hydrick, attorney for the defendants, for the sum of $5,050. This bid was not complied with; and on June 18, 1924, the Special Referee made a report to the Court, as follows:

"In accordance with the judgment and decree of this Court dated the 13th day of December, 1923, I offered for sale by public auction, after due advertisement, on Monday, the 7th day of January, 1924, during the legal hours of sale, at the courthouse in Lexington, S.C. the mortgaged premises described in the said decree. Upon the premises being offered for sale, they were struck off to J.H. Hydrick, attorney, for the sum of $5,050; he being at that price the highest bidder therefor. The said purchaser, or successful bidder, has failed to comply with the bid, and I now report the matter to the Court for further instructions. While, under the original order of sale, I might be authorized to resell the said premises on some sales day after September, 1924, without further order of the Court, still I am submitting the entire matter to the Court, with the recommendation that an order be passed authorizing and directing me to require at the resale a deposit, either by cash or certified check, of $1,000 of the bid by the successful bidder before closing the bidding; it appearing to me that the said amount would be a reasonable deposit considering the value of the said premises as evidenced by the amount of the mortgage under foreclosure and the amount of the bid as set forth above."

On September 16, 1924, eight months after the premises were offered for sale, the matter of the confirmation of this report came up before his Honor, James P. Carey, Jr., special presiding Judge. Counsel for the defendants filed his written objections and exceptions to its confirmation. Judge Carey, after hearing arguments for and against confirmation, passed the following order:

"It appearing from the report of H.L. Harmon, Clerk of Court as Special Referee in the above-entitled cause, filed 18th day of June, 1924, that, in accordance with the decree of Hon. C.M. Efird, special presiding Judge, dated the 13th day of December, 1923, the said Special Referee duly offered the premises described in the said decree for sale at public auction at Lexington courthouse, on the first Monday in January, 1924, it being the seventh day of said month, and that the said premises were then and there struck off to J.H. Hydrick, attorney, for the sum of $5,050, he being, at that price, the highest bidder therefor, and that the said bidder has failed to comply with his said bid:

"Now, therefore, upon motion of Onan A. Hydrick and D.S. Murph, attorneys for the plaintiff, after due notice to the defendants and to the said bidder, and after hearing arguments by the plaintiff's attorneys in favor of the motion and by J.D. Carroll, Esq., appearing for the defendants and the bidder against the motion: It is ordered: That the said H.L. Harmon, Clerk of Court as Special Referee, do proceed to resell the premises mentioned and described in the said decree of Hon. C.M. Efird, special presiding Judge, dated the 13th day of December, 1923, on the sales day in October, 1924, or on some subsequent sales day, upon the terms prescribed in the said decree, save and except that the Special Referee be authorized to require a deposit with him, by the successful bidder, of $1,000 of the purchase money, or a certified check therefor, before closing the bidding. This decree is made upon the authority of Tyeret al. v. Charleston Rice Milling Co. et al., 10 S.E., 1067;32 S.C. 598, and Barnwell v. Marion, 40 S.E., 873; 62 S.C. 446, that it is demanded by the exigency here developed; that it will not in any way modify, reverse, annul, change, or in any manner whatsoever affect the said former decree of special presiding Judge Efird; and that it is not in conflict with the letter or spirit of, but, on the contrary, is in aid and support of, the said decree."

The appellant objects to the order of Judge Carey and comes to this Court on appeal by six exceptions, which will be reported. The following grounds of appeal are stated by the exceptions: (1) That Judge Carey changed the terms of the sale by requiring a deposit of $1,000 of the purchase price before closing the bidding; (2) that the report of the Special Referee does not state any conclusion of law or finding of fact; (3) that there was no testimony before Judge Carey to show a changed condition of the parties; (4) that the order of Judge Efird provided a remedy in case the bidder failed to comply; (5) that there was no emergency that would justify Judge Carey in passing the order; and (6) that the decree made by Judge Efird was by consent, and that Judge Carey was without jurisdiction to make his order without the consent of all parties to the suit.

The questions raised by the exceptions of the appellant were passed upon by this Court and resolved in favor of the respondent in the cases cited by Judge Carey in his order. Tyer et al. v. Charleston RiceMilling Co. et al., 10 S.E., 1067; 32 S.C. 598, and Barnwellv. Marion, 40 S.E., 873; 62 S.C. 446. In each of these cases the original decree provided for the sale of mortgaged premises, payment of one-third cash, and for the resale of the property in case the bidder failed to comply. In each case the premises were bid in by a defendant who failed to comply, and an order was made by the Court directing the resale of the property and the deposit of a certain part of the purchase money in cash. In the present case, the order of Judge Efird provided that the terms of the sale should be for cash. The order of Judge Carey did not change this provision, but, in the exigency that had arisen, provided that $1,000 of the purchase price should be paid in by the successful bidder before closing the bidding, as an aid in carrying into effect the order of Judge Efird. The report of the Special Referee showed that he had done his duty by offering the premises for sale, and that the successful bidder had failed to comply. Judge Carey had before him this report as well as the written objections and exceptions of the appellant as to its confirmation, and it appears that the matter was fully argued by counsel for both sides. As to the matter of a consent decree, particularly stressed by the appellant, it may be said that while a consent decree may be regarded in the nature of a contract between the parties consenting, it does not leave the Court helpless in seeing that such consent decree is carried out.

In 15 R.C.L., at page 645, it is said:

"The fact that a judgment has been rendered by consent does not give it any greater validity than if it had been rendered after sharp and protracted litigation."

The exceptions of the appellant are without merit and are overruled.

The judgment of this Court is that the order appealed from be affirmed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS, COTHRAN, and BLEASE concur.