Farrow v. Farrow, 70 S.E. 459

70 S.E. 459 | S.C. | 1911

Lead Opinion

April 5, 1911. The opinion of the Court was delivered by This is an appeal from an order of the Circuit Court, setting aside an order of the probate court, for a resale of certain lands.

The facts are fully stated, in the order made by the judge of probate, which will be set out, in the report of the case.

The first question that will be considered, is whether his Honor the presiding Judge erred, in overruling the judge of probate's findings of fact.

In a note to Black v. White, 13 S.C. 37, reference is made to the unreported case of Gunning v. Erwin in which the Court said: "The probate court was the proper tribunal, for determining such question of fact, in the first instance; and, having the witnesses before it, had the best opportunity of judging of the weight, that should attach to the testimony of the witnesses, and of drawing proper inferences of fact. The Circuit Court ought not to disturb the findings of the probate court, on questions of fact of that nature unless clear ground is afforded for that purpose."

We are satisfied with the findings of fact by the probate judge, especially as he conducted the sale, and had personal knowledge of many of the facts found by him. Therefore, all the appellant's exceptions, assigning error on the part of his Honor the Circuit Judge, in overruling the findings of fact by the probate judge, should be sustained.

The motion which the plaintiff made, before the judge of probate, for a resale of the lands, was addressed to his discretion, and was not appealable, unless there was an abuse of discretion on his part. State v. Burnside, 33 S.C. 276,11 S.E. 787.

Indeed, we do not understand, that this proposition is controverted as it is sustained by the authorities cited, in the argument of the respondent's attorneys. Therefore, under our view of the testimony, the main question in the case, is, whether there was an abuse of discretion on the part of the probate judge, in ordering the resale.

Section 960 of the Code of Laws provides, that "every judge of probate shall keep the following books, * * * each to be designated by its label as follows * * *:

"`Real Estate,' in which he shall enter all proceedings or orders, in relation to the sale or division of real estate; from the petition to the bond of the purchaser, both inclusive."

Section 837 of the Code of Laws provides, that "the sheriff of every county shall keep and preserve as public records in his office, the following separate books * * * labelled with its appropriate title, to wit:

"A `Sale Book,' in which the sheriff shall enter all sales which he may make under any order, decree, execution or final process of any of the Courts of this State." * * *

In the case of Long v. McKissick, 50 S.C. 218,27 S.E. 636, Mr. Chief Justice McIver, in behalf of the Court, uses this language:

"The next position taken by the appellant is, that the entry in the official sale book, was not the original entry, but that the memorandum book, in which the original entry was made, was the best evidence, and should, therefore, have been produced. The law requires the sheriff to enter in his official sale book, and such book affords the best evidence of such sales. The mere fact that a memorandum book, or sometimes a slip of paper, is used at the auctioneer's block, to enter the items of the sale, which are afterwards entered in the official sale book, does not make such memoranda the best evidence of such entries. It is well known, that sales by the sheriff are usually made out of doors, sometimes in bad weather, and to require the sheriff to take a ponderous book, constituting a part of the records of his office, out to the auctioneer's block, and there make the entries in it, the very moment after the sale, would be not only a harsh and unreasonable requirement, but would be far from conducive to the proper preservation of such book, and to the neat and orderly entries, proper to be made in such book. Besides, the authorities show that this position cannot be sustained. * * * In the absence of any evidence to the contrary, we must assume that the sheriff did his duty, and made the proper entries in his sale book, as early after the sale as practicable."

In discussing the proper entry to charge a purchaser, under the statute of frauds, the Court, by O'Neall, J., inElfe v. Gadsden, 1 Strob. 225, states the rule as follows: "That the original memorandum book, was given in evidence, is not, it seems to me in any wise material; for, it is not the sales book; and it is allowable for the sheriff, to keep his private memoranda, and from them to make the entry required by law, in the official book." To the same effect is the case of Christie v. Simpson, 1 Rich. 407. There is no testimony to the effect, that a memorandum of the sale was made by the probate judge who sold the property, at any time whatever; and the reasonable inference from the testimony is, that in any event, an entry had not been made in accordance with the requirements of the statute, when the plaintiffs hurried to the judge of probate, and protested against the inadequacy of the price for which the land was bid off, by the respondent. As there was then, no binding contract, between Cox and the owners of the land, it was the duty of he probate judge to expose the property for sale again, and to entertain bids, for a higher price.

It will thus be seen that it was not the negligence of the plaintiff, but the failure of the probate judge to recognize her rights, that deprived her of the opportunity, to bid for the land. And, the injustice which she suffered, demanded reparation, which was granted to her, when the judge of probate, in the exercise of the wise discretion reposed in him, ordered a resale.

In the case of State v. Burnside, 33 S.C. 276,11 S.E. 787, the Court used the following language in reference to the court of probate: "The Court will relive against the mistake of the party, bad faith on the part of the officer making the sale, or the negligent mistake on the part of theofficer, and in every case where it would be inequitable, thatthe sale should stand. American Ins. Co. v. Oakley, 9 Paige 59. One of the things most desired and promoted in judicial sales, is free and full competition, so that property may sell for its full value; hence the policy of the law, in setting aside such sales, where there is fraud or mistake, or the biddings have been chilled, etc., etc." (Italics ours.)

The respondent's attorneys, however, rely upon the case of Young v. Teague, Bailey's Eq. 13 (cited with approval in Ex parte Cooley, 69 S.C. 143). In that case the principle was announced that it is not a sufficient ground for setting aside a judicial sale, that one of the parties interested intended to bid higher, but neglected to do so, or was prevented by a mistake, at the time of the sale, if neither the officer making the sale, nor the purchaser, contributed to the mistake, and the sale was fair and regularly conducted; and it makes no difference that some of the parties were minors.

In that case, the application for a resale, was made after the execution and delivery of the deed, and reasons are therein assigned for the conclusion of the Court, that are inapplicable to the case under consideration. That case, however, recognizes the well settled doctrine, that the sale will be set aside, when the neglect or mistake of the officer offering the land for sale, has contributed to prevent competition in bidding. Ex parte Cooley, 69 S.C. 143,48 S.E. 92.

In the case of Yates v. Gridley, 16 S.C. 496, the Court recognizes the fact, that the resale was refused in the case of Young v. Teague, Bail. Eq. 13, principally on the ground that the deed had been executed when the application was made, and then says: "The English practice of opening the biddings before confirmation does not apply in this State. When titles have been executed in this State at official sales, they are good without confirmation, unless assailable for fraud or other facts and circumstances, entitling the party to equitable relief."

As the Court is equally divided in opinion, the judgment of the Circuit Court stands affirmed.

MR. JUSTICE WOODS concurs in the conclusion of MR. JUSTICE GARY.

MR. CHIEF JUSTICE JONES thinks the judgment of theCircuit Court should be affirmed.

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Addendum

While it is true that the confirmation of a sale under an order of Court is within the discretion of the Court making the order, still that discretion is not an arbitrary or capricious one, but it is one which must be exercised in accordance with settled legal principles. If it appears that it has not been so exercised, the error may be corrected as for an abuse of discretion, which does not necessarily imply any improper motive or intentional wrong, but merely that the exercise of the discretion was, under the circumstances, manifestly contrary to reason and justice, or the settled principles of law, or the practice of the Court.

The policy of the law is to sustain judicial sales, when fairly made. Under our decisions, when the auctioneer's hammer falls at such a sale, and the bid thereby accepted has been entered in the book, which the officer making the sale is required by law to keep, a valid contract is made. The purchaser thereby makes himself a party to the cause, and may, except when there is fraud, misrepresentation, mistake, or other circumstances of unfairness in the sale, or a defect in the title, be compelled, by the order of the Court, to perform his contract. Justice to the bidder requires that, in the absence of any such circumstances, he should have the benefit of his contract. It should be mutual. Any other course would make the rights of the purchasers at such sales so uncertain that it would tend to discourage bidding at them, a result so much more injurious in its consequences that it overbalances the possible injury resulting in a few isolated cases by a firm adherence to settled principles.

The only facts worthy of consideration in this case are that Mrs. Farrow was absent when the land was sold to Mr. Cox, and the alleged inadequacy of the price. There is no intimation of any other reasonable ground for refusing to confirm the sale. The testimony shows that Mrs. Farrow, being tired of standing around the place where the sales were being conducted, went to the office of the probate judge, — some forty yards distant, — where she could be more comfortable, while waiting for the sale in this case. Her attorney, her brother, her son, and her son-in-law were all present at the sales. It does not appear that she requested either of them to bid for her, or that she had even told either of them of her intention to bid or the amount she intended to bid, or that either of them was told to ask that the sale be delayed until she could be summoned, or that she or any one else notified the probate judge of her absence. She reached the place of sale just as the crier was knocking down the land to Mr. Cox, and, inferably from the testimony, before it was knocked down to him; yet she made no bid, nor did she inquire at what bid the land was being sold, nor does it appear that she did not know. Her brother and son were with her when she reached the place of sale. Either of them by bidding for her, or by inquiry as to the amount of the bid then being accepted (if she did not know it) could have arrested further proceedings. Would the Court characterize such conduct on the part of any other intending bidder as other than negligent? If so, it presents no ground for relief. The probate judge bases his conclusion, to some extent, at least, upon the ignorance and inexperience of Mrs. Farrow and her son. But he considers them sufficiently intelligent and experienced in business affairs to appoint the one administratrix of her husband's estate, and the other guardianad litem for his infant children. But public policy forbids the recognition of such an excuse, unless some advantage was taken of it.

As to the inadequacy of price: The rule is well settled that mere inadequacy of price, unaccompanied by other circumstances which should invoke the exercise of the Court's discretion, is not sufficient, unless, perhaps, it is so great as to raise a presumption of fraud or to shock the conscience of the Court. Inadequacy of price coupled with other circumstances tending to cause it, or with any unfairness or impropriety in the sale, may be sufficient, even though neither, standing alone, would be. But the accompanying circumstances should be such as would of itself tend to call for the exercise of the Court's discretion. Certainly the mere negligence of an intending bidder would have no such effect. It cannot be said that the price is so grossly inadequate as to raise a presumption of fraud or shock the conscience of the Court. Only one person has made an actual offer to pay more than the bid accepted, and he is the principal unsecured creditor, whose offer of $2,000 would probably be paid, in part, at least, by his debt, upon which, presumably, he would otherwise get nothing.

If the mere fact that some one can be found, after a sale has been fairly made, who offers more, — even double what the land brought at the sale, — is held to be sufficient ground to refuse confirmation, the position of a purchaser at such sales is indeed precarious.

The foregoing views are supported by the following cases: Young v. Teague, Bail. Eq. 13; Ex parte Alexander,35 S.C. 416, 14 S.E. 854; Ex parte Cooley, 69 S.C. 154,48 S.E. 92.

I think the judgment of the Circuit Court should be affirmed.

MR. CHIEF JUSTICE JONES concurs.

The petition for rehearing in the case was refused in the order refusing a similar petition in Hutchinson v. Turner, ante — filed April 5, 1911.