Cauthen v. Cauthen
61 S.E. 112
S.C.
1908
Check Treatment

March 30, 1908. The opinion of the Court was delivered by This case has been before this Court twice before (70 S.C. 167, 49 S.E., 321, and 76 S.C. 226) . Full statements of facts were made in the former *Page 457 appeals. This appeal is from an order of Judge James Aldrich made to carry into effect the last decree of this Court.

The contention of the appellant W.B. Cauthen that the Circuit decree is not in conformity with the judgment of this Court rests on misapprehension. As we understand, W.B. Cauthen has been in possession of the land since he bid it off on 4th December, 1905. He is, therefore, liable for the interest on his bid less all the credits which were established in his favor by the former judgment of this Court. This is the scheme adopted by Judge Aldrich in his decree.

The following statement will show that Cauthen owes the clerk on his bid $2,846.87, with interest from 4th December, 1905:

The 470-acre tract brought ........................ $1,825 00
The 384-acre tract brought ........................  6,000 00
                                                    _________
Gross sales ....................................... $7,825 00
Amount of costs as taxed ..........................    448 85
                                                    _________
   Net sales ...................................... $7,376 15


Amount of judgment or claim reported
 by referee, ordered to be
 paid first .........................    $3,299 64


Interest on same from 26th September,
  1905, the date to which referee
  computed, to 4th December, 1905,
  the date of sale ...................       43 62
                                         _________  3,343 26
                                                   _________
Surplus proceeds of sale ................          $4,032 89
The interest of W.B. Cauthen in the
  surplus proceeds of sale is threetenths
  .................................                 1,209 87
                                                   _________
*Page 458 

Amount of Cauthen's bid ................           $6,000 00
Amount of claim reported by referee,
 $3,299.64, less $1,400.00 paid
 Green  Hines for Cauthen ............  $1,899 64


Interest on amount reported by referee,
  $3,299.64 from 26th September,
  1905, to 4th December, 1905.               43 62


Cauthen's interest in the surplus proceeds
   of sale ............................   1,209 87
                                         _________
                                                    3,153 13
                                                   _________


All that Cauthen could be required to
   pay at the time of the sale .......             $2,846 87
He, therefore, owes this amount and interest thereon from 4th December, 1905.

This is the statement on which appellant's counsel claims the settlement should be made, and it carries out the decree of Judge Aldrich. It is true the decree did not in express words provide for the payment of the costs, but we think that was implied, and if appellant's attorney regarded it not sufficiently clear on this point, application should have been made to Judge Aldrich to provide for the costs.

As we understand, the sum of $448.85 deducted from the bids in the foregoing statement covers all costs. As to part of this taxation of costs there is litigation between the parties, and the fund reserved to pay the disputed costs will be distributed hereafter according to the result of the litigation about the costs.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed. *Page 459