37 S.C. 309 | S.C. | 1892
The opinion of the court was delivered toy
Under proper proceedings in this case for the foreclosure of a mortgage given by one John McMahon, the intestate of defendant Ellen, a certain house and lot in the city of Charleston was offered for sale by the master, and bid off by the appellant, H. A. Heiser. He having failed to comply with the terms of the sale, a rule was issued against him, to show cause why he should not be required to do so. To this rule the appellant made return, setting forth certain objections to the title to the premises which he bid off, and asking a reference to Master Sass, to inquire into, and report upon, the title. A reference was accordingly ordered, and the master made his report (which should be incorporated in the report of this case), in which he found' that the title was good and marketable, and recommended that the purchaser be required to comply. To this report, Heiser, the appellant, filed sundry exceptions, and the case was heard by his honor, Judge Izlar, upon the report and exceptions, together with an admission by counsel, that, subsequent to the filing of the master’s report, a deed was executed by Hugh Ferguson, the present sheriff of Charleston County, to W. B. Smith for the premises in question, which, by consent, is incorporated in the “Case,” and agreed to be considered as a muniment of the title tendered to the appellant Heiser. The Circuit Judge over
From this judgment the said Heiser appeals, upon the several grounds set out in the record, which are, substantially, as follows: 1st. Because the deed from Shingler, sheriff, to W. B. Smith vested only a life estate in him, and no title has been acquired by adverse possession. 2d. Because said deed affords no evidence of an executory contract of sale of the fee, and, hence, no title to the fee has been acquired by possession under said deed. 3d. Because, even if evidence of such executory contract, the right to the enforcement of such contract has been lost by the laches of the purchaser and his assigns. 4th. Because the mortgage from McBride to Smith, and the subsequent possession of the latter, did not operate either as a conveyance of the fee or as an executory contract to convey the same. 5th. Because the deed from Robert White to John McMahon has never been recorded according to law. (The sixth ground is so general in its character, as to render any statement of it unnecessary.) 7th. If the title is otherwise defective, the recent deed from Sheriff Ferguson to Smith cannot cure such defects, because said Ferguson had no authority to execute such a deed.
The muniments of title tendered to appellant, briefly stated, are as follows:
1st. A conveyance in fee from one Joseph Johnson to Patrick McBride, dated 15th August, 1839.
2d. A mortgage of McBride to W. B. Smith, dated 21st of November, 1845, of the same premises.
3d. A conveyance from Sheriff Shingler to W. B.-Smith of the same premises, made in pursuance of a sale under an exe
4th. A conveyance in fee from W. B. Smith to Robert White, dated 14th September, 1852. This conveyance does not contain a clause of general warranty, but does contain a warranty against Smith and his heirs.
5th. A mortgage from White to Smith, bearing even date with the conveyance just mentioned, given to secure the purchase money. Upon this mortgage there is an entry of satisfaction, dated 11th February, 1862.
6th. A conveyance in fee from Robert White to John McMahon, dated 4th of December, 1863, which was recorded in the proper office on the 11th December, 1863. But the probate endorsed on that deed appears to have been taken before one John Phillips, who signed his name thereto without any word designating his official character. But it appeared in evidence that on the purchase money mortgage, executed on the same day, the probate shows that it was taken before “John Phillips, magistrate;” and the master finds, as matter of fact, that the probate on the deed was sworn to before said Phillips, who was “a member at that time of the Charleston bar, who neglected to sign as a magistrate or notary public, but in the purchase money mortgage given on the same date, he signs his name to the probate of the same as a magistrate.” It also appeared in evidence that the premises in question were in the possession of John McMahon and his.family from 1863 up to the date of the reference, 19th April, 1892, a period of more than twenty-eight years.
Two objections are taken to the title: 1st. Because of the omission of the technical word "heirs” in the deed from Shingler, as sheriff, to W. B. Smith, whereby it is claimed that he, as well as those claiming under him, took only a life estate in the premises. 2d. Because the deed from Bobert White to John McMahon was never legally recorded, as it was never properly proved.
It will not do to say, as is contended by appellant, that these various possessions, having commenced under a deed which only vested a life estate iu W. B. Smith, could not become adverse until after his death, as such possession would be presumed to be of nothing but the life estate of Smith, and were entirely consistent with such an estate—for two reasons: In the first place, the sheriff, having sold the entire estate of McBride, which was a fee, had no authority to convey any lesser estate to the purchaser, and, even if he had, in express terms, undertaken to convey a mere life estate, having no authority to do so, his attempt would be nugatory, and the purchaser’s possession would be referred to the legal right to which he was entitled, and not limited by the character of the conveyance, which the sheriff, without authority, undertook to make. See Iseman v. McMillan, 36 S. C., 27, which, though not a case in which the sale was made under an execution, yet the same principle applies—that the power of the sheriff in making a sale is limited by the mandate, be it an ordinary execution or a judicial order, under which he sells. While it is true, that, where the sheriff sells and conveys the property of the judgment debtor under execution, he, to a certain extent, acts as the agent of such judgment debtor, yet he has not all the powers of his principal. For, while McBride might have sold to Smith a mere life estate in the property, or any greater or lesser estate therein, yet the sheriff, as his agent, had no such power, but could only sell whatever estate was vested in McBride, which undoubtedly was a fee.
Smith, the purchaser, having thus bought the fee, and being entitled, by virtue of his purchase, to demand a conveyance of the fee, and having asserted his right to the fee, as is conclusively shown by the terms of his deed to Robert White, his possession must be regarded, as found by the master, to be adverse to all the world; and the mere fact that he took what purported to be a deed from the sheriff, in which the technical word necessary to carry the fee was not to be found, by reason óf a mere clerical omission, as the master finds, cannot be re
It seems to us, therefore, that in any view of the case there was no error on the part of the Circuit Judge in holding, that the title tendered appellant was good and marketable, and that he should, therefore, be required to comply with the terms of the sale.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.