Lanham v. Jennings, 113 S.E. 791

Lanham v. Jennings

113 S.E. 791 | S.C. | 1922

October 4, 1922. The opinion of the Court was delivered by At a foreclosure sale conducted by the appellant as Master certain real estate was bid off by the respondent, L.K. Jennings, an attorney of the Spartanburg bar. The bids not having been complied with, the property was resold at a subsequent sales day, at the risk of the defaulting purchaser, pursuant to the terms of the decree in the foreclosure suit of the School District of Spartanburg v. R.C. Hall. Upon resale, the property brought $1,200.00 less than at the first sale. Thereupon the respondent, L.K. Jennings, Esq., was ruled to show cause before his Honor, H.F. Rice, Circuit Judge, why judgment should not be entered against him for the deficiency, with interest and costs. The matter was heard before Judge Rice upon the petition of the master, the return of the respondent, and affidavits submitted on behalf of both parties. From the decree of Judge Rice discharging the rule the Master appeals. Let the decree of the Circuit Judge be reported.

The cause shown by respondent for not complying with his bids was that he had acted as attorney for a client in bidding off the lots, and that he had so notified the auctioneer at the time, or immediately after, the property was knocked down to him. The Circuit Judge finds the facts to be that "Jennings did bid at the sale as an attorney for his client Hall, and did so announce to the auctioneer, but that the latter, in the noise and confusion, did not hear him, and honestly entered the sale on his books to Jennings individually." Upon that state of facts, the Judge concludes that Jennings should not be held liable.

There are four exceptions, but they raise but one question for the consideration of this Court, viz., whether the Circuit Judge's findings of fact, as above stated, were erroneous. It is true the first ground of appeal is directed to alleged error of law on the part of the Judge in holding that the burden of proof was upon the master to establish, by the greater weight of the evidence, "that Jennings bid for himself at the sale and made no announcement *466 to the contrary to the auctioneer." As a statement of the rule as to burden of proof upon the issue raised by respondent's defense, we think appellant's criticism is technically well grounded. In the circumstances of this case, the respondent's right to relief from liability depended upon the establishment by the greater weight of the evidence of his claim, which was in the nature of an affirmative defense, that he had acted as an agent and had duly disclosed his principal. 21 R.C.L., p. 895; Long v. McKissick, 50 S.C. 236,237; 27 S.E., 636. But it would seem clear, from the Circuit Judge's decree as a whole, that what he had in mind was the burden resting upon the master, as the proponent of the general issue of liability, to satisfy the Court as the trier of the facts by the greater weight of the evidence that the respondent was liable for the amount claimed. If upon all the evidence, the Court was not so satisfied, then respondent had successfully met the obligation to establish his affirmative defense by the greater weight of the testimony.

But we deem the Circuit Judge's view as to the burden of proof immaterial. The rule against the respondent was issued in the exercise of the power of the Court of equity to compel compliance by a successful bidder with the terms of an order for the sale of land. ExpartePatterson (S.C.), 113 S.E., 467, this term; Corbettv. Fogle, 72 S.C. 321; 51 S.E., 884; Ex parte Qualls, 71 S.C. 87;50 S.E., 646. The appeal, therefore, is in a chancery case wherein it is the duty of this Court to review the findings of fact. If such findings are sufficiently supported by the evidence to merit the approval of this Court, the mental processes of the Judge in arriving at his conclusions are not controlling.

The findings of fact to which the exceptions refer are supported by the sworn statement of the respondent, L.K. Jennings, Esq., to the effect that his bids were made as attorney for his principal, R.C. Hall; that during the sale he was standing by the side of Hall and consulting with *467 him within 20 feet of the auctioneer in plain view; that when the first lot was knocked down to him, he announced in a voice that he thought should have been heard by the master and the auctioneer that his bid was "as attorney for Mr. Hall"; that a day or two afterwards, having read in a newspaper that "the bid had been charged to him personally," he went to the master's office and, finding the master absent, advised his stenographer of the facts, etc. The respondent's statement as to the announcement of his principal at the time of the bidding is corroborated by the affidavit of Hall, the said principal. The facts thus positively affirmed are controverted by the affidavits of the Master and the auctioneer and of several other persons present to the effect that no announcement qualifying his bid was made by Jennings, or, if made, that it was not heard by such witnesses. We have carefully reviewed the testimony adduced by the appellant, which, from the nature of the case, was of a more or less negative character, and have given especial consideration to the force of certain circumstances relied upon to impeach the veracity of the respondent — among others, that Hall, the respondent's alleged principal, was the defendant in the foreclosure suit and, as appellant contends, an irresponsible bidder. We are clearly of the opinion, however, that the facts and circumstances relied upon by appellant afford no sufficient warrant for branding the respondent as unworthy of belief under oath, and that, in accordance with that view, Judge Rice correctly found the facts.

The exceptions raise no question as to the soundness of the Circuit Judge's legal conclusion of non-liability from the facts so found. It follows, therefore, that the decree of the Circuit Court must be affirmed. *468