McIver v. Thompson

September 20, 1921. The opinion of the Court was delivered by The facts herein are fully stated in the decree of his Honor the Circuit Judge, which, together with the exceptions, will be reported.

The appellants also made a motion in the original cause to open the judgment and set aside the sale, which motion was heard by his Honor, Judge Wilson, at the same time he heard the present case, and refused.

The first question we will consider is whether there was error in refusing said motion.

In his decree his Honor, the Circuit Judge, says:

"The only thing the Thompson heirs could now do would be to object to the confirmation of the sale — there having been no confirmation thereof to this day. * * * Being satisfied as I am that the purchase price was paid by the purchasers to Henry T. Thompson, the natural, the general guardian and the guardian ad litem of the Thompson heirs, and that the terms of the order have been complied with, I confirm the said sale."

His Honor, the Circuit Judge, very properly considered the motion upon the merits. When a sale of land is ordered by the Court, it is the duty of the person empowered by it to execute the deed, to file a report of sale, showing that he has complied with the requirements of the order. It is then necessary that there should be an order of the Court confirming the report of sale. It is the order of confirmation that gives validity to the deed. Until these several steps are taken, the proceedings do not become res adjudicata, so as to prevent parties to the action from interposing objections to the confirmation of the sale. Kibler v. McIlwain, 16 S.C. 550. "The order of confirmation gives to the sale the judicial sanction of the Court, and when made it relates back to the time of the sale and cures all defects and irregularities, except those founded on one of jurisdiction and fraud." Connorv. McCoy, 83 S.C. 165, 65 S.E. 257.

While we recognize the fact that his Honor, the Circuit Judge, had the power and authority, and that it was indeed his duty, to consider the merits of the motion, we, however, are not satisfied with his conclusion that the sale should be confirmed. Col. Henry T. Thompson, the father of the appellants, represented them as their guardian ad litem.

The law as to the duty of a guardian ad litem is thus stated in 22 Cyc. 662:

"The duty of a guardian ad litem or next friend is to look after the infant's interest and to act for him in all matters relating to the suit as he might act for himself if he were of capacity to so do. The guardian ad litem should make a defense of the interests of the infant as vigorous as the nature of the case will admit. His duty requires him to acquaint himself with the rights, both legal and equitable, of his wards, and take all necessary steps to defend and protect them, and to submit to the Court for its consideration and decision every question involving the rights of the infant affected by the suit. If in consequence of the culpable omission or neglect of the guardian ad litem the interests of the infant are sacrificed, the guardian may be punished for his neglect, as well as made to respond to the infant for the damage sustained."

This language is quoted with approval in Cagle v.Schaefer, 115 S.C. 89, 104 S.E. 321, in which Mr. Justice Hydrick, who delivered the opinion of the Court, said:

"In failing to perform their duty to defend the action in behalf of their wards the guardian ad litem of the infant defendants and their testamentary trustee were both guilty of culpable negligence, which would have subjected them to liability to their wards if any damage had resulted. A notion, which is entirely erroneous, seems to be prevalent that a guardian ad litem for infant defendants fully performs his duty when he files a formal answer, submitting their rights to the protection of the Court."

Paragraph 5 of the complaint in the former action is as follows:

"That Mrs. Hannah McIver, the life tenant, and her son, John K. McIver, one of the remaindermen, have entered into a contract to sell to the plaintiff all the timber on the tract above described, but these plaintiffs are advised that they are unable to make a good title to said timber, without the aid of this honorable Court, as the defendants above named also have an interest, and are minors under the age of 21 years, and cannot execute a title. That these plaintiffs have agreed to pay for said timber $1,650 in cash upon the condition that they are given 20 years in which to remove the timber off said land."

Paragraph 7 of the complaint alleges:

"These plaintiffs are informed that there is a mortgage on said property, the same having been executed by the life tenant and remaindermen to Mrs. L.M. Davis during the lifetime of Mrs. Fannie McIver Thompson and that a portion of said purchase money is to be used in liquidating said mortgage."

We desire to call special attention to this statement of facts in the decree or his Honor, Judge Wilson:

"The life tenant, Hannah J. McIver, died A.D. 1916, and John K. McIver, her child, is still living, and is plaintiff in this action. Before the death of Fannie, she, her mother, Hannah J. McIver, her husband, Henry T. Thompson, and her brother, Jno. K. McIver, all joined in the execution of a mortgage to one Mrs. L.M. Davis."

It will be observed that the complaint omitted the fact that Col. Henry T. Thompson also joined in the execution of the mortgage. There was also another mortgage on the property, which is mentioned in Judge Wilson's decree.

The testimony satisfies us that the following are the facts in the case:

(1) That it was not the intention of any of the parties to the former action that the infant defendants were to receive any money or benefit whatever from the sale of the timber.

(2) That it was the intention of the parties that the proceeds arising from the sale of the timber was to be used in satisfaction of the indebtedness incurred by the mortgage above named, for which the infant remaindermen were in no wise liable.

(3) That the rights of the infants were not protected in the manner required by law.

We call attention to this statement in the decree of Judge Wilson:

"The Scott Lumber Company are subsequent purchasers. They purchased only after an examination of the records. Some faith and credit must be given to the records provided by the Legislature and the judgments of the Courts of this State. I hold that the Scott Lumber Company are subsequent purchasers for value, that the money was paid in accordance with the conditions of the former order, and that the deed from Henry T. Thompson to the Scott Lumber Company is good and valid."

As the Scott Lumber Company purchased "only after an examination of the records," and as the records did not show that the sale made by Col. Henry T. Thompson had been confirmed, it (the Scott Lumber Company) is not entitled to the protection of a purchaser for valuable consideration without notice. Furthermore, the recitals in the deed to its grantors under which it holds were sufficient, at least, to put the Scott Lumber Company upon inquiry.

This practically disposes of all the exceptions.

The judgment of the Circuit Court is reversed and the case remanded to that Court for the purpose of carrying into effect the conclusions herein announced.

MR. JUSTICES WATTS and COTHRAN concur.

MR. JUSTICE FRASER disqualified on account of relationship to certain of the parties.