Parrott v. Dickson

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] June 26, 1929. The opinion of the Court was delivered by An action was instituted in the Court of Common Pleas of Clarendon County, this State, by Kate Walker Hall, plaintiff, against Leon Walker et al., in 1919, having for its object the partition and sale of certain real estate, situate in the town of Manning, belonging to the estate of B.A. Walker, deceased, which resulted in a decree of said Court directing that said lands be sold by a dependable auction company, and that the sales so made should be approved, ratified, and confirmed by the Clerk of Court of Clarendon County. The Clerk gave due notice of the sale by advertisement, and further advertised that all sales made by his agent, the First National Auction Company, were subject to his confirmation, and that he reserved the right to reject any and all bids, and that upon his confirmation of the sales and the refusal by the purchaser to comply with his bid, the property would be readvertised and resold at the risk and expense of the defaulting bidder. It appears, however, that the order of sale did not provide for the resale of the property in the event of default by the successful bidder to comply with his bid. The auction company, as the agent of the Clerk, sold the property on the first Monday of March, 1920, and at such sale the appellant, Joseph S. Dickson, bid off, as the highest bidder, two lots of the property, and paid in the cash portion of his bid, to wit, one-third. A deed was prepared, having for its object the conveyance of the two lots to the said Dickson, but was never executed by the Clerk. Notes and mortgage were also prepared, having for their object the securing of the credit portion of the bid, but were never executed by Dickson. Dickson never paid the additional portion of the purchase money, and no report was ever made by the Clerk of Court of the failure of Dickson to comply with his bid, nor was the property bid in by him ever readvertised or resold. Dickson never went into possession of the lots.

Thereafter, just when it does not appear, P.M. Parrott, the respondent here, was appointed trustee in the case by the Court of Common Pleas and duly qualified. In July, 1926, he filed his petition as such trustee, setting forth the above-mentioned facts, and prayed that a rule be issued by the Court to said Dickson to show cause, if any he had, why he should not be made to comply with the terms of sale and of his bid. The rule was issued and Dickson made return. After hearing the petition and return and supporting affidavits, his Honor, Judge John S. Wilson, passed an order, ordering Dickson to forthwith pay to the trustee the sum of $2,250, with interest thereon from the 1st day of March, 1920, at the rate of 7 per cent. per annum, and further directing the trustee, upon receipt of the money, to make and deliver to Dickson a deed to the two lots.

Dickson appealed to this Court from Judge Wilson's decree upon twelve exceptions. We do not think it necessary to consider the exceptions separately, but we shall pass upon the questions presented by them.

When the appellant became the successful bidder, he became a party to the suit of Hall against Walker, to the extent to enable him to move in that cause, and as such party he is amenable to the jurisdiction of the Court therein. Ex parte: Qualls, 71 S.C. 87, 50 S.E., 646; Exparte: Patterson, 121 S.C. 78, 113 S.E., 467. The rule issued against him in that action was issued in the exercise of the power of the court of equity to compel compliance with the terms of his bid. School District of Spartanburg v. Hall,122 S.C. 461, 113 S.E., 791.

This appeal is a chancery case, wherein it is the duty of this Court to review the findings of fact. If such findings are sufficiently supported by the evidence to merit the approval of this Court, such findings will not be disturbed.

Appellant concedes that he bid off the lots in question, as alleged in respondent's petition, at the price stated, to wit, $3,380, and that he paid in the cash portion of said bid, to wit, $1,130, but seeks to avoid compliance with the terms of sale on the grounds: (1) That the Clerk of Court never confirmed the sale made by his agent, the auction company; (2) that the lots were never readvertised and resold at the risk and expense of the defaulting bidder; (3) because the contract of sale was not reduced to writing, and there was no note or memorandum thereof signed by him or by any other person thereunto by him lawfully authorized, and is therefore within the Statute of Frauds (Civ. Code 1922, § 5516); (4) because the alleged contract of sale, in reference to the deferred payments, was not to be performed within the space of one year from the making thereof, and was not in writing signed by appellant or by some other person thereunto by him lawfully authorized and is within the Statute of Frauds (Civ. Code 1922, § 5516); (5) because this proceeding is barred by the Statute of Limitations (Code Civ. Proc. 1922, § 331); and (6) because the appellant bid on the lots in question at a time when real estate was selling at high prices and desired the lots for speculative purposes; that he was prevented from consummating his purchase, and handling the land as his own, through the delict, negligence, and laches of the Court officers, etc., and through no fault of his own; that it would be inequitable and unjust now to require him to comply with the terms of said sale, since the land market has gone to pieces, and alleges that he is entitled to, and demands, that the cash portion of his bid be returned to him, together with interest thereon.

To entitle the appellant to relief from liability by reason of his bid, it was incumbent upon him to show by the greater weight of the evidence a valid reason or reasons why he should not be made to comply with the terms of his bid.

Since the Clerk of Court did not reject appellant's bid, but on the other hand accepted payment of the cash portion thereof, it is but reasonable to suppose that he accepted appellant's bid. Indeed, the acceptance of such cash portion was within itself tantamount to the acceptance of his bid and confirmation of the sale.

The order of sale was the chart which guided the Clerk of Court in making the sales therein ordered. Since this order did not provide for the resale of the lands upon the failure of the purchaser or purchasers to comply with the terms of sale, it was wholly without the power of the Clerk of Court to make a resale. The insertion in the advertisement of the sale by the Clerk of Court a notice that, in the event of the failure to comply with the terms of sale, the premises would be resold at the risk of the defaulting bidder could not, and did not, change the terms of sale as provided by the order. The order of sale was a public document, and all bidders, as well as other persons, were charged with notice of its terms.

Appellant had a reasonable time after the sale in which to examine the title to the lots bid off by him. There is no contention that the title was defective. There is no evidence that appellant's bid was rejected by the Clerk, nor is there any evidence that appellant informed the Clerk of his unwillingness to comply with the terms of his bid. If the Statute of Limitations could run in cases of this kind, we think that before such Statute could begin to run, appellant should have notified the Clerk of his refusal to comply. Certainly, the Statute of Limitations is not applicable, since this is a case in equity. Fanning v. Bogacki, 111 S.C. 376,98 S.E., 137.

When the appellant became the successful bidder and paid in the required one-third of the purchase price, he became the equitable owner of these lots, and the purchase money so paid in became the property of the Walker estate, and the purchaser became indebted to the Walker estate for the balance of the purchase price.

The appellant being a party to the action of Hall against Walker by reason of his being the successful bidder, and having the right to move therein, if he had conceived that his rights were prejudiced by the alleged non-action of the Clerk of Court, his remedy was by rule against said officer. Ex parte: Qualls, supra; Davis v. McDuffie,18 S.C. 495. He could have availed himself of the arm of the Court to compel the Clerk to execute and deliver to him a deed to the lots bid off by him. This he did not do, presumably because he did not want the property for the reason that land values decreased subsequently to the sale. It is true that there has been an unaccountable delay and apparent negligence on the part of the Clerk of Court, but appellant seems to have been quite satisfied with that delay, as he made no effort to have the matter closed up. He could have made a sale of the lots the day he bid them off, or any day thereafter, and thereupon could have assigned his bid. A deed from the Clerk to him was not necessary to enable him to seek a purchaser, but had he wanted a deed he could have applied to the Court for a rule requiring the Clerk to show cause why the deed should not be executed. He did none of these things, but was content to sit idly by. The Court cannot relieve him from his obligation without doing an injustice to the Walker estate. Had land values increased, there is no doubt but that appellant would have complied, and there is no doubt but that he would have received a deed. We see no reason for relieving him and thereby injuring the Walker estate merely because the value of these lots has decreased. Had appellant made every effort to comply with his bid within a reasonable time after the sale, but was prevented from so doing on account of the negligence of the Clerk, then he might have just cause to ask for relief.

The deed, prepared to be executed by the Clerk conveying these lots to appellant, should have been executed by him. The notes and mortgage prepared to be executed by appellant, securing the credit portion of his bid, should have been executed by him. Equity regards as done that which should have been done.

The Statute of Frauds. — We do not think appellant's exceptions as to the Statute of Frauds are well taken. The auctioneer positively swears that he had a book in which he entered the number of lots sold, the amount of the bid, terms of sale, and the name of the purchaser. Mr. Arrowsmith, attorney for the plaintiff in the case of Hall against Walker, makes affidavit that he knows of his own knowledge that this statement of the auctioneer is true. It is not controverted by plaintiff's return to the rule to show cause, or by any affidavit by him filed. It must be assumed that said statement is true. It is the better and safer practice for an officer directed by the Court to make sales to make proper entries in a book to be filed in the appropriate office. We have been cited to no law, however, and we know of none, which so requires. Where an entry of a sale has been lost, its existence and loss may be proved by the person who made the sale. Gordon v. Saunders, 2 McCord, Eq. (7 S.C. Eq.), 151. We do not think this case is in any sense governed by Ruff v. Hudspeth, 122 S.C. 391, 115 S.E., 626. That was not a judicial sale, but a sale by private parties, and a memorandum of sale was not signed by the auctioneer, but by a real estate broker. In a judicial sale, the seller is disclosed by the proceedings in which the sale is ordered and the advertisement of sale by the official ordered to make the sale. There is, and can be, no uncertainty as to who the seller is. When the sale was made, the auctioneer was the agent of both the seller and purchaser, and the principle announced in Episcopal Church v. Wiley, 2 Hill Eq. (11 S.C. Eq.), 584, 30 Am. Dec., 386, is applicable, and such entry is a compliance with the Statute. Gordon v. Saunders, supra; Lemanv. Blackwood, Harp. (16 S.C.L.), 219.

There was no conclusion for the Circuit Judge to reach other than that the auctioneer had made the entries, as stated in his affidavit, without disregarding absolutely the uncontradicted testimony of both the auctioneer and Mr. Arrowsmith.

Nor do we think that the appellant should be relieved on the ground of laches. In Peake v. Young, 40 S.C. 41,18 S.E., 237, the purchaser was required to comply, in an action for specific performance, although ten years had elapsed since the sale. Respondent had two methods which he might pursue, one by action for specific performance, and the other by rule in the original case in which the sale was ordered. He chose the latter method. It was wholly within the power of the Circuit Court by either method to order the purchaser to comply with his bid, and also to order a resale in case of failure to comply or to order a compliance without ordering a resale.

It is the judgment of this Court that the order appealed from be, and the same hereby is, affirmed.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES STABLER and CARTER concur.