Lyles v. Haskell , 35 S.C. 391 ( 1892 )

The opinion of the court was delivered by

Mr. Justice McGowan.

On February 6,1888, W. II. Kerr, as the clerk of the court of Fairfield County, conveyed to William H. Lyles, his heirs and assigns forever, “all that piece, parcel, or tract of land, lying and being in the county and State aforesaid, containing twelve hundred and sixty-six and one half (1,266-J) acres, more or less, and bounded by lands of J. Davis, K. Anderson, Thomas Furman, J. A. Beard, Mrs. Watt, J. P. McFie, Thomas Robertson, Glazier Rabb, and others.” The deed recited that the land had been sold by order of the Court of Equity in the case of William K. Ryan, assignee, v. Thomas Anderson and others; of which more hereafter. On April 2, 1888, William H. Lyles conveyed the aforesaid tract of land, known as the “Anderson Quarry Tract” (described precisely as in the deed to Lyles from the clerk, Kerr), to A. C. Haskell and F. W. Dawson, trustees, to hold the same for the benefit of Rudolph Siegling, F. W. Dawson, A. C. Haskell, Thomas W. Woodward, and himself (Lyles), in equal one-fifth proportions.

After the death of Mr. Dawson, the said W. H. Lyles instituted this proceeding for the partition or sale of the premises, and all the parties in interest being before the court, assenting, his honor, Judge Witherspoon, on December 17, 1890, ordered the premises sold, and by agreement of the parties the sale was made by A. C. Haskell, the surviving trustee, before the court house door in Columbia, after notice of the sale, in terms as follows : “All that tract or parcel of land in Fairfield County, known as the ‘Anderson Quarry Tract’ [describing it].¹ Upon the land is found granite of the finest quality and in inexhaustible quantities, one ledge rising from the creek about 75 feet in height and having an exposed area of 10 square acres, with only one or two seams through the entire body. This stone is of the very finest quality as regards appearance, durability, and the ease with which it can be worked. The titles to the property are perfect, and the opportunity will be given to a purchaser to examine into the same. Terms of sale cash, after a reasonable time for the examination of the titles to the property,” &c.

According to this advertisement, the sale was made by Judge Haskell, the surviving trustee, in Columbia, on salesday in February, 1891, and James F. Redding was the highest and last bidder for the land at the price of $24,610 ; but he declined to comply, which declination was reported to the court. Thereupon a rule was issued against the said Redding, returnable to the court at Winnsboro, to which he made an elaborate return, declining to comply with the terms of sale upon the grounds alleged, that the title was defective and the quantity deficient. After full argument, Judge Hudson filed his decree, overruling all the objections to the title, and directing the purchaser to comply. From this decree Mr. Redding appeals to this court upon three grounds, as follows:

“First. Because his honor erred in not holding that the minor children of Emma E. Anderson were not bound by the decree made in the case of Ryan, assignee, v. Anderson and others, under which William H. Lyles purchased and held the ‘Anderson Quarry Tract’ of land,” with four specifications, which will be considered in order.

“Second. Because upon a resurvey of the property contracted to be purchased, there is a deficiency of two hundred acres, which is admitted to be of the value of $1,000, and his honor erred in not holding, either that respondent is not bound to comply or is entitled to reduction pro tanto for said deficiency, it appearing distinctly by the advertisement under which he purchased, that the land comprised a certain number of acres, the titles to which were specially represented in said advertisement to be perfect, and under the terms of said advertisement a purchaser was entitled to expect the greatest accuracy.

Third. Because there is an unsatisfied mortgage on the premises contracted to be purchased by appellant as aforesaid, which is a lien thereon, viz., the mortgage made by W. H. Lyles to W. H. Kerr, C. C. O. P. for Fairfield County, and assigned to Mary C. McCarter, and his honor erred in compelling appellant to comply with the terms of sale, without making provision for the payment and satisfaction of said mortgage.

Fourth. Because his honor erred in requiring the respondent, appellant, to comply with the terms of sale, &c.

1 As to the alleged defects in the title. It is not suggested that there are any inherent defects, such as the want of a grant or of perfect chain of title, &c., but only such as are claimed to have arisen out of defective legal proceedings, and in failing to have the persons in interest properly made parties. It will be noticed that no such vice is attributed to the proceedings in the case of Lyles v. Haskell et al., under which defendant made his purchase, all proper parties being before the court, and the proceedings regular in that case. But the objections made reach further back and assail the regularity of the old case of W. K. Ryan, assignee, v. Thomas Anderson et al., under which Mr. Lyles purchased, and which, as alleged, touch and vitiate his title as vendor. It should be mentioned, however, that these objections do not come from the parties in that case, whose title it was then the object to sell and transfer; but from a stranger to these proceedings, Mr. Redding, who after-wards happened to become the purchaser of the premises. There was an order of sale, which it is the settled policy of the State to maintain, if it can be done without violating principle or doing injustice. There was a judgment rendered by a competent court having jurisdiction of the subject-matter, and that presumes that all things were rightly done. Objections to mere irregularity in the proceedings will not be heard to impeach a judgment. Nothing, in fact, will be allowed collaterally to invalidate a title acquired under it, but jurisdictional defects which appear in the record. In the case of Ryan v. Anderson, the court certainly had jurisdiction of the subject-matter, and the only question is, whether it acquired jurisdiction of the parties, and that must be determined by the record itself.

It appears that on August 9,1882, the action was commenced, that at that time the premises were owned by Mrs. Emma E. Anderson, the wife of Thomas Anderson ; that the proceeding was instituted in Fairfield County to foreclose a statutory mortgage, and that both Mrs. Anderson and her husband were necessary parties, and the complaint prays against them (among others). Summons was issued and lodged in the office of'the sheriff of Fairfield County, with the sworn return that she and the other, defendants had been served “at their respective residences on August 10, 1882,” and one Milling made affidavit that Thomas Anderson and his wife, Emma E., “resided in Fairfield County” at the time said summons was served. After the said service of summons, but before she answered, Mrs. Anderson died, and James H. Rion, Esq., within a year, made affidavit of her death, and Judge Hudson made the following order: “On hearing the annexed affidavit of Jamos H. Rion, plaintiff’s attorney, and with the consent of the attorneys of such of the defendants as have appeared and answered herein, it is ordered, I. That this action be continued against Thomas Anderson, Edward Anderson, Emma E. Anderson, C. Elizabeth Anderson, and James D. Anderson, as heirs at law of the defendant, Emma E. Anderson, deceased. II. That the said Thomas Anderson, C. Elizabeth Anderson, Edward Anderson, Emma E. Anderson, and James D. Anderson do appear and answer the complaint herein within twenty days after a service of a copy of this order upon them. III. That in default thereof the plaintiff may apply to this court for an order appointing a guardian ad litem for the infants, O. Elizabeth Anderson, Edward Anderson, Emma E. Anderson, and James D. Anderson, and directing such guardian ad litevi to appear and answer this action on their behalf, and may have judgment for failure to answer against the defendant, Thomas Anderson,” &c.

Copy of this order was served on Thomas Anderson and each of his four minor children on June 14, 1883, as returned “at their residence in Fairfield County.” James H. Rion, attorney, petitioned J. R. Boyles, Esq., judge of probate of Fairfield County, stating that the four children of Mrs. Anderson, deceased (naming them), were infants under 14 years, to appoint George H. McMaster their guardian ad litem, which was done, and the said guardian employed a lawyer, J. W. Hanahan, Esq., who appeared and answered for them. After the issues were thus made up, Judge Witherspoon referred it to J. E. McDonald, Esq., as special referee, to report the testimony and report on the truth of the statements in the pleadings. The report was filed, and Judge Fraser, on September 21, 1883, after reciting that ail the parties were properly before the court, made a decree of foreclosure, directing the premises sold, and the sale was made, at which the premises were purchased by W. H. Lyles, the vendor. Under these circumstances, were the order of sale made by Judge Fraser in the case of William K. Ryan, assignee, v. Thomas Anderson, and the sale and conveyance thereunder void, in whole or in part ?,

2 (A) The first specification under the first ground of appeal alleges that Mrs. E. E. Anderson, the mother, was not properly made a party, in that the proof of service of the summons does not show where service was' made upon her; and therefore the action could not lawfully be' continued against her childreu and heirs at law. The return of the sheriff stated that Mrs. Anderson was served “at her residence,” but did not state that it was in “Fairfield County.” Section 159 of the Code requires that the affidavit must state “the time and place of service.” This direction has been held to be satisfied by a statement that the service was made in a specified county of the State. 1 Wait Prac., 543. The “county” was not stated here, but the whole record showed that it was Fairfield County. The land was in Fairfield County, the action was brought in Fairfield County, the summons lodged in the sheriff’s office of Fairfield County, and served by the deputy sheriff of Fairfield County, and the presumption is overwhelming that he acted within his jurisdiction. We agree with the presiding judge, that Mrs. E. E. Anderson, the mother, was duly served with summons in “Fairfield County,” and that the court had acquired jurisdiction of her person before her death.

3 (B) The second specification complains that even if Mrs. Anderson was' properly served, the service of the order continuing the action, even if properly made on the minor children, and so shown by the record, is not sufficient to continue the action, but the same should have been continued under the order by the service of a summons. Section 142 of the Code provides “that no case shall abate by the death, marriage, or disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest,” &c. This was done within a year by Judge Hudson’s order of June 7, 1883, and a copy of the same was served on each of the heirs, with a notice that if they did not within 20 days appear and answer the complaint, the plaintiff might apply to this court for an order appointing a guardian ad litem for the infants, &c. It is contended, however, that a summons was indispensable. We find no express requirement that in a case continued by order, there must be also a summons; and as the order served contained substantially all the elements of a summons, we cannot say that the absence of a formal summons was a jurisdictional defect. See Arthur v. Allen, 22 S. C., 432.

2 (C) The third specification denies that the continuing order of Judge Hudson was legally served on the heirs of Mrs. Anderson, for the reason that the return of service by Milling, D. S., was “served by delivering to them (naming them) personally and by leaving with them copies at their residence in Fairfield County.” We have already held that a return of service on a certain day “in the County of Fairfield” satisfied the requirements of the Code as to place. The heirs of Mrs. Anderson were made regular parties by continuance after her death.

4 (D) The fourth specification insists that even if the infants were made parties, they were not represented in the case by a legally appointed guardian ad litem, for by the terms of the continuing order, “it was expressly declared that on failure of said parties to answer, the plaintiff should have leave to apply to this court — meaning the Court of Common Pleas — for the appointment of a guardian ad litem; and the record not only shows that there was no notice to said infants, or to any one on their behalf, of the proposed application for the appointment of a guardian ad litem, but shows that the application was actually made to, and the appointment by, the judge of probate without any notice, and the answer put in by the guardian ad litem so appointed, is not signed or verified by him.”

When an infant has been made a party, he can only appear by guardian ad litem, appointed as follows : if he is a defendant and under the age of 14 years, or neglects to apply within 20 days after service of the summons, then upon the application of any other party to the action or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one; if he has none, to the person with whom such infant resides. See subdivision 2, section 137, of the Code. There is not even a suggestion that these infants had a general or testamentary guardian; and we think that notice to them and their father, with whom they resided, to appear and answer the complaint, was substantially a notice that they should have a guardian ad litem to enable them to do so, and in default thereof that the plaintiff would proceed to have a guardian appointed, and was a sufficient notice. Faust v. Faust, 31 S. C., 576.

It is, however, still further contended, that under the terms of the continuing order, the appointment of a guardian ad litem could only be made legally in the Court of Common Pleas. If there was a mistake in reference to this matter, it could be nothing more than a mere irregularity, which was cured by the judgment ; but section 136 of the Code expressly declares that a guardian ad litem may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge, &c. Trapier v. Waldo, 16 S. C., 276; Faust v. Faust, 31 Id., 576; In re Loney, 134 U. S., 374. There was no surprise to the infants; they had their day in court, they derived full benefit from the proceedings, and they are not here making complaint. We agree with the Circuit Judge that they were legally represented, and are bound by the decree and the sale- of the premises in the case of W. K. Ryan, assignee, v. Thomas Anderson et al.

5 ¡Second. As to the deficiency in the number of acres. Upon this subject the Circuit Judge said: “An abatement in price is claimed, because there is said to be a deficiency of about two hundred acres. Where quantity enters into the essence of a contract for the sale of land, and there is a material deficiency, an abatement pro tanto in the price will be allowed, and in all cases when the deficiency in the quantity of land is so great as materially to affect its value, the purchaser will either be relieved of his bargain or will be allowed a fair abatement of the price to be paid- In the present purchase the chief value of the land is the vast quantity of superior gray granite lying beneath and upon its surface. It was sold for its quarries of granite, and bought exclusively for its supply of granite, and by men already largely engaged in this industry, now so largely on the increase. There is no evidence that the deficiency in the number of acres detracts from its value in this respect; no evidence that any resurvey has disclosed the loss to the purchaser of any bed of granite inspected by him, and no evidence, therefore, that he has failed to get all that he valued in the purchase. I fail to see, therefore, any valid reason why James F. Redding should not comply with the terms of sale and perfect his purchase.” We agree with this clear condensation of the law upon the subject, and think it unnecessary to enter into a review of the cases. The sale was not by the acre, but of a certain tract of land known as the “Anderson Quarry Tract,” and the number of acres was mentioned as a part of the description of the land. There was no pretence of fraud or intentional misrepresentation. See Mitchell v. Pinckney, 13 S. C., 210; Thompson v. Wofford, Ibid., 219; Douthit v. Hipp, 23 Id., 208; and Peden v. Owens, Rice Ch., 56.

Third. As to the unpaid mortgage owned by Mary C. McCarter. It was stated at the bar, that the decree of Judge Wither-spoon ordered this mortgage paid, and there was no appeal. We have not been able to find the decree ef Judge Witherspoon in the “Brief,” but it is admitted that the mortgage debt must be paid, and it is so ordered, by consent of the parties.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.

1 The description is the same as that contained in the first paragraph of this opinion. — Reporter.