Ex parte Howlett v. Garner

50 S.C. 1 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Justice Jones.

Under a decree in the principal cause above stated, the sheriff of Darlington County, on January 2d, 1893, sold at public auction a number of lots in the town of Darlington. Among these lots were lot No. 1, which may be called the “railroad lot,” containing the depot of the C., S. & N. R. R. Co., and lot No. 10, called the “Mooney lot,” containing several tenement houses. The railroad lot, No, 1, was sold to perfect title. The Mooney lot, No. 10, was considered valuable, by reason of the tenement houses. The two lots differed very little in size and description, as advertised. When lot No. 1 was offered for sale, the attorney for plaintiff, by mistake arising from incorrect information received from the former attorney in the cause, announced that lot No. 1 was a lot on which were situated six tenement houses, and as attorney for plaintiff, bid on it under that belief. After some competitive bidding, this lot was knocked down to plaintiff at $1,600. When lot No. 10 was offered for sale, plaintiff’s attorney announced that it was sold subject to a claim of the Charleston, Sumter and Northern Railroad Company, the company claiming it under a grant of right of way and for depot grounds, that it was the lot on which the depot was to be built, that any one who bought it would do so at his risk. This lot was knocked down to J. S. Garner and J. B. Raw, at $250. Garner and Raw complied with the terms of sale, received titles from the sheriff, and some time afterwards Raw conveyed his interest in the premises to Garner. Garner took possession of the premises. After-wards plaintiff’s attorney discovered the mistake in the sale of the lots, and proceeded to have a rule issued requiring Garner to show cause why the sale should not be set aside, on the ground that same was made under a mutual mistake of fact. On the return to the rule, by consent of parties, the issues raised were referred to the master of Darlington County. The master reported that the evidence was insufficient to establish a case of mutual mistake, and that even if there was a mutual mistake, it was not such as is relievable in equity. Accordingly, he recommended that the rule against Garner be discharged, and the conveyance to Garner and Raw be confirmed. The Circuit Court reversed the master’s report, holding that there was a mutual mistake, and that the mistake was such as a court of equity should relieve against, and accordingly decreed that the deed to Garner and Raw be cancelled and the sale set aside, that the premises be resold, that Garner should account for the rent received by him from the premises since February 1st, 1892, at $8 per month, and should be credited with $487.50, the aggregate amount paid to the sheriff in purchase of the lot, and to J. B. Raw for his interest therein, the difference to be paid to Garner from the proceeds of the sale, and that Garner should pay the costs and expenses of the rule.

The exceptions raise practically three questions: 1. Was there a mutual mistake, and such a mistake as is relievable in equity? 2. Should Garner be allowed credit for taxes, repairs and other expenses on the premises against rent received? 3. Should Garner be charged with the costs of the proceeding?

1 1. After a careful examination of the testimony, we agree with the Circuit Judge that a mutual mistake occurred in the sale and purchase of lot No. 10, and that while it was sold and purchased as the railroad lot, No. 1, it was in fact the “Mooney” lot. This conclusion is so well supported by the facts as summarized by the Circuit Judge that we need do no more than refer to his decree, which will be reported. That such a mistake is one relievable in equity is also well sustained by authority.

2 2. We think, however, that it was error not to allow Garner, as against the rents of the property received by him, credit for taxes which he may have paid on the property, and also for any expenditure he may have made in necessary repairs on the property.

3 3. As to the matter of costs, we will not interfere with the discretion of the Circuit Court.

The judgment of the Circuit Court is modified in accordance with the principles herein anounced, and the cause remanded to the Circuit Court for further proceedings in accordance herewith.