Corbett v. Fogle

OPINION. August 3, 1905. The opinion of the Court was delivered by It is contended by the respondents that the pleadings raise an issue of title, and that as such issue is of a legal nature, the findings of fact by the Circuit Judge are final, and cannot be reviewed by this Court. The third paragraph of J.W. Fogle's answer alleges: "That the plaintiffs and defendants, John Corbett, Julia Martin and Emma Corbett, are not, and never have been, tenants in common with these defendants in said lands; that the plaintiff and his brother, John Corbett, and his sisters, Julia Martin and Emma Corbett, have no interest whatsoever in said lands; are not entitled to partition thereof, or to the possession and use of the same, and that the possession and use of the same, and the rents and profits arising therefrom, belong exclusively to these defendants, who by virtue of the premises have the legal title thereto and are the sole owners in common thereof." This was sufficient to raise an issue of title, and we sustain the objection that the facts cannot be reviewed. The decree, however, shows that the Circuit Judge, in applying the law to the facts of the case, made certain rulings which are assigned as error; and, of course, they may properly be made the subject of appeal.

The first question that will be considered is whether the Circuit Judge erred in ruling that the following testimony of J.W. Fogle was incompetent, under section 400 of the Code, to wit: "I paid my wife the $100, her interest which she paid on the place." In the case of Monts v. Koon, 21 S.C. 110, 112, the Court says: "The foundation of the defense was payment, payment by certain notes, which Koon in his answer claimed that he had placed in the hands of Fort for collection, and the evidence admitted was intended to sustain this defense. It showed that Koon had placed these notes in the hands of Fort, and it involved not only the act of Koon in putting the notes in Fort's hands, but also the act of Fort in receiving them. This was certainly a transaction between the two, and, therefore, the testimony was in violation of the section of the Code under consideration."

If Fogle had simply testified that he placed $100 in the hands of his wife, the testimony would have been admissible; but when he further testified that the $100 was in payment of a certain interest, then this involved the act of the wife in so receiving it, and rendered the testimony incompetent.

We will next consider the exception assigning error on the part of the Circuit Judge in ruling "that there is no testimony showing or tending to show that John W. Fogle had any authority from his wife, Emiline O. Fogle, to direct any limitations to be added to the deed or incorporated in it, and, therefore, he had no authority to make any such direction." There was testimony tending to show that the deed was executed on the 2d of January, 1871, and the report of sale confirmed on the 10th of January, 1871, that Emiline O. Fogle entered into possession under said deed, and lived on the land continuously until her death, on the 23d of June, 1897 — a period of more than twenty years. In the case of Riddlehoover v. Kinard, 1 Hill's Ch., 376, the Court says: "The lapse of twenty years is sufficient to raise the presumption of a grant from the State, of the satisfaction of a bond, mortgage or judgment, of the grant of a franchise or the payment of a legacy, or almost anything else that is necessary to quiet the title of property." The lapse of twenty years afforded evidence of acquescence on the part of Emiline O. Fogle in the terms of the deed; and likewise of any fact necessary to give it full force and efficiency. The ruling of the Circuit Judge was, therefore, erroneous.

The next question for consideration is whether the Circuit Judge erred in ruling that "John W. Fogle had no authority to direct, and Thaddeus C. Andrews, judge of probate, had no authority to make the interlineation and insertion of the words, `children of J.W. Fogle,' in the deed referred to. The law did not commit to Thaddeus C. Andrews, judge of probate, the power of placing such foreign matter in the deed, and his attempt to exercise such power was not binding on the purchaser, Emiline O. Fogle, and is not on her heirs at law."

The record shows that the land was bid off by J.W. Fogle; the deed was executed to Emiline O. Fogle and the children of J.W. Fogle on the second of January, 1871; and the report of sale was made and confirmed on the 10th of January, 1871. Ordinarily the deed will be made to the person bidding off the property, but the right to the deed may be assigned, in which case it will be made to the assignee. 17 Enc. of Law, 1031. The deed may also be made to such person as the purchaser directs, when the rights of third parties would not thereby be prejudicially affected.

The rule is thus stated in section 438 of Rorer on Judicial Sales: "Ordinarily the conveyance is to be made to the purchaser, if not desired by him to be made to some one else; but in judicial sales, as the whole matter remains under the control of the Court until the delivery of the deed, and the purchaser by his purchase becomes a party to the proceedings, and is, therefore, in Court, the Court has full power at his request to order the deed to be made to another person as grantee in his place on full payment of the purchase money. A deed to such other person made under such sale and substitution, if otherwise sufficient, will be valid, without prejudice, however, to any equities, rights or liens, which may have become vested before such assignment of his bid, and subject to all liens which in the meantime may have vested against the original purchaser."

When J.W. Fogle bid off the land and Emiline O. Fogle accepted the conveyance, they became parties to the proceedings, and the order confirming the sale was res adjudicata as to them. Kibler v. McIlwain, 16 S.C. 550; Ex parteQuarles, 71 S.C. 87; 17 Enc. of Law, 1025. At most, the insertion of the words, "children of J.W. Fogle," was a mere irregularity, which was cured by the confirmation of the report of sale. Lyles v. Haskell, 35 S.C. 391,14 S.E., 829; 17 Enc. of Law, 1033.

In the case of Jenkins v. Hagg, 2 Treadway, 821, the Court says: "Many persons become bidders at sales by the agency of others, and if they have not given authority, or if the agent exceeds his powers, they are bound to disclaim immediately." The Circuit Judge based his ruling upon the case of Iseman v. McMillan, 36 S.C. 27, 34, 15 S.E., 336; but our interpretation of that case is that it decides otherwise. The Circuit Judge in that case said: "I must hold as a matter of public policy and good law, that when a mere executive officer of the Court undertakes, on his own authority, to add limitations to a deed even with the consent of the purchaser, which in any way encumber the rights of the parties in interest in the fund arising from the sale, such limitations are void as to all persons other than such purchaseror his privies in estate" (italics ours), and this ruling was approved by the Supreme Court, which also uses this language: "It was in the power of the Court when the sale was made by the sheriff in 1870 * * * to enforce compliance with the terms of its order or judgment for the sale, either by rescinding the sale, by reselling the property, or by bringing an action for the price. Burriss v. Gouch, 5 Rich., 5. Nor is it at all inconsistent with the rule laid down, for the Court to disregard any injection by its officer of foreign matter into such deed."

If the Court had seen fit, it had the power to refuse to confirm the sale, unless the injected words were struck out of the deed. But instead of doing so, it allowed them to remain in the deed; and its order was res adjudicata as to such question. The exception assigning error in the ruling under consideration is sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.