Ballard v. Benson ( 2004 )

PREHEARING REPORT

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(D)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Vernon C. Ballard, Respondent,

v.

Alvin K. Benson, Rey’s Jewlers, Henry Taylor d/b/a Taylor Electric, Bobby Mosley, United States of America and Joyce Equipment Company, Defendants,

Of Whom Alvin K. Benson is Appellant,

and

Rey’s Jewelers, Henry Taylor d/b/a Taylor Electric, Bobby Mosley, United States of America and Joyce Equipment Company are Respondents.

---

Appeal From Anderson County
Ellis B. Drew, Jr., Circuit Court Judge

---

Unpublished Opinion No.  2004-UP-646
Submitted November 1, 2004 – Filed December 21, 2004 

---

AFFIRMED

---

Richard E. Thompson, Jr., of Anderson, for Appellant.

Harold P. Threlkeld, of Anderson, James D. McCoy, III, of the U.S. Attorney’s Office and  Michael Stephen Chambers, of Greenville, for Respondents.

PER CURIAM:  Alvin K. Benson appeals the circuit court’s withdrawal of an earlier order and the subsequent issuance of a decree of partition.  We affirm. [1]

FACTS

In August 1989, Best Amusement, Inc., conveyed 2.075 acres of property to Samuel L. McMullin and William M. Mattison.  In 1992, McMullen and Mattison failed to pay taxes on the property. To settle the default, Anderson County sold the easternmost acre to Vernon C. Ballard at a tax sale in October 1993.  Exactly one year later, following the statutory redemption period, Ballard received his title.

On April 20, 1994, the federal government filed a forfeiture action in the United States District Court for the District of South Carolina against McMullen and Mattison for illegal drug activities.  The complaint alleged McMullen and Mattison began purchasing cocaine from various sources in 1984 and used money from cocaine sales to make the down payment on the property. The complaint further alleged that the property should be forfeited to the United States pursuant to 21 U.S.C.A. § 881(a)(6) (1999).  Anderson County was notified of the action on April 21, 1994.

On September 25, 1995, a forfeiture order was entered whereby McMullen and Mattison forfeited their interest in the property to the United States. On November 19, 1998, the United States Marshal for the District of South Carolina sold the property.  Alvin K. Benson successfully bid on the property and received a deed, releasing the United States’ interest in the tract. A few months later, on February 26, 1999, the marshal executed a corrected deed which specifically excluded the one-acre tract already sold by the County to Ballard.  In late 2000, Ballard petitioned the circuit court for partition of the property.  Benson responded, arguing the Marshal’s sale conveyed title to the entire property and was superior to Ballard’s deed received from the county tax sale.

The circuit court initially found for Benson. Ballard, however, filed a motion to alter or amend the order pursuant to Rule 52(b), SCRCP.  In support of his motion, Ballard submitted an affidavit from Nancy Prince Mackey, Aiken County Treasurer, dated January 28, 2003. [2]   Mackey asserted she conferred with the U.S. Attorney handling the forfeiture and both agreed the United States’ interest in the property was subject to Ballard’s deed.  After reviewing the affidavit, the circuit court withdrew its earlier order.

In its final order, the circuit court recognized Ballard’s one-acre interest in the property.  After determining the property could not be practically divided or partitioned, the court ordered it be appraised and sold, with proceeds distributed between Benson and Ballard according to their respective interests. This appeal followed.

STANDARD OF REVIEW

The determination of title to real property is at law.  Wigfall v. Fobbs, 295 S.C. 59, 60, 367 S.E.2d 156, 157 (1988). In an action at law tried without a jury, the trial judge’s factual findings will not be disturbed on appeal unless wholly unsupported by the evidence or controlled by an error of law; however, this court may correct errors of law without deference to the lower court.  Simmons v. Bellamy, 349 S.C. 473, 476, 562 S.E.2d 687, 688 (Ct. App. 2002).

LAW/ANALYSIS

Benson argues he gained title to the entire property, including the one-acre tract the County sold to Ballard, by virtue of the 1998 Marshal’s sale.  We disagree.

The federal government secured its interest in the property pursuant to 21 U.S.C.A. § 881(a)(6) (1999), which provides that any property furnished by any person in exchange of controlled substances is subject to forfeiture by the United States.  When property is subject to forfeiture for the violation of law, title vests absolutely in the sovereign at the date of the illegal act. 21 U.S.C.A. § 881(h) (1999).

Benson argues that this relation back theory applies here; thus, the forfeiture relates back to 1989, when McMullen and Mattison used proceeds from controlled substances to purchase the property.  The corrected deed issued to Benson by the U.S. Marshal, however, added an exclusion for the acre that had already been sold by the County to Ballard. This supports the circuit court’s finding that the United States never acquired any interest in the acre claimed by Ballard.

As noted previously, Ballard submitted an affidavit from Mackey, the Anderson County treasurer, with his motion to reconsider. She asserted the property’s easternmost acre was sold at a tax sale to Ballard in 1993 and a deed was conveyed to him in 1994.  Since the sale, Ballard has paid taxes on the parcel.  The remaining 1.075 acres was not sold to Benson until 1998.  Although there was some confusion on the U.S. Attorney’s part about the description of the forfeited property, the matter was clarified in a conference between Mackey and the U.S. Attorney handling the forfeiture action. The U.S. Attorney agreed with the Mackey that the sale of the one-acre tract predated the forfeiture and was not subject to forfeiture. The affidavit also confirms that Benson had no interest in the one-acre tract.  

Assuming for the sake of argument the federal government did gain an interest in the entire tract by forfeiture, Ballard is protected by the innocent owner defense.  Ballard was never given any notice of the forfeiture action.  At the time the action took place, the federal forfeiture statute contained an exception which provided that “no property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.” 21 U.S.C.A. § 881(a)(6) (1999). [3]   The South Carolina forfeiture statute contains similar language, providing that the court may return any seized property to the owner if the owner shows that he “was not a consenting party to, or privy to, or did not have the knowledge of, the use of the property which made it subject to seizure and forfeiture.” S.C. Code Ann. §44-53-586 (2002). 

We note the overriding purposes of civil drug forfeitures are deterrence and retribution.  Forfeitures are viewed by the government as a necessary tool to deter drug trafficking, and are not intended to punish innocent owners.  Michael D. Dautrich, The “Innocent Owner” Defense in Civil Drug Forfeitures after United States v. 92 Buena Vista Avenue: Still an Uphill Battle for Third-party Claimants, 3 Widener J. Pub. L. 995 (1994).  With this in mind, we conclude Ballard qualifies as an innocent owner as he had neither knowledge of, nor consented to, the illegal activity leading to the forfeiture.  Though there is no case directly on this point in South Carolina, other jurisdictions have held that a bonafide purchaser is entitled to protection as an innocent owner.   See United States v. One Single Family Residence Located at 6960 Miraflores Ave, 731 F. Supp. 1563, 1568 (S.D. Fla. 1990).

Because Benson failed to prove that the entire tract had been forfeited to the United States and conveyed to him, the circuit court’s decision is

AFFIRMED.

HEARN, C.J., GOOLSBY and WILLIAMS, JJ., concur.

---

[1]   We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] The affidavit was made part of the record without objection.

[3] Congress struck the innocent owner defense from § 881(a)(6), which became effective for any forfeiture commenced on or after 120 days from April 25, 2000.  See Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106-185, § 21, 114 Stat. 202, 225 (2000).  However, the government’s forfeiture in this case predated the effective date for elimination of the innocent owner defense.