Fretwell v. McGee ( 1928 )

February 23, 1928. The opinion of the Court was delivered by For the reasons assigned by Hon. C.A. Mays, Special Judge, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.

We find the following in 16 R.C.L., pp. 54 and 55:

"The sale and contract are not complete and final until it is ratified and confirmed by the Court. The contract of a bidder at a sale in equity is not executed until he has complied with the terms of sale and received the officer's deed, or done something which would estop him from asserting that the contract was not executed, as where a purchaser, after the discovery of a defect in title to the property, complies with his bid and goes into possession of the land. Until such time, the purchaser's contract of sale is executory merely. The order of confirmation, being the consummated contract between the Court as vendor and the purchaser of the property, is conclusive of its terms, and these may not be added to or varied by collateral attack. The vested rights which the purchaser acquires when the property is knocked off to him, however, are fixed, though defeasible, and subject to be defeated if the Court refuses to confirm the sale. And the rights of the purchaser and the correlative rights of the judicial officer are established at the time of the sale and by the contract then made. It is this contract which is the substantial thing in the transaction, and when the deed which the judicial officer subsequently gives is delivered, it relates back to the time of the contract. The purchaser at a judicial sale enters into a contract with the officer to which the same principles should be applied which are applicable to a similar contract between private parties voluntarily entered into. And the fact that by the terms of the contract the purchaser is not entitled to possession until a future date does not in any way alter the legal or equitable rights of the parties. Nor does the fact that the officer who sells is only exercising a power and has no title change the rules to be applied when the contract has been once made. So when the Court itself is requested by the purchaser to relieve him of his purchase, the matter is dealt with as if it were an action of specific performance, and the same principles are applied.

Also People's Bank of Greenville v. Bramlett, 58 S.C. 477;36 S.E., 912; 79 Am. St. Rep., 855.

His Honor had the whole matter before him and decided adversely to the contention of the appellant, and the appellant has failed to convince us that his Honor was in error, which was incumbent on him to do.

MESSRS. JUSTICES STABLER and CARTER concur.