41 S.C. 517 | S.C. | 1894
The opiniou of the court was delivered by
The plaintiff brought his action in the court below for injunction, upon the following allegations of his complaint:
“I. That the plaintiff is now the owner, and is,in possession, of the following described parcels of land, situate in the county and State aforesaid, to wit: * * * II. That the said lots were, by the will, of the late Hewlet Sullivan, devised, the former to M. Henrietta Parkins and the latter to Sallie O. Mahaffey, and were, on the 15th' day of December, A. D. 1889, duly conveyed by the said M. Henrietta Parkins and Sallie O. Mahaffey, respectively, to this plaintiff, by deeds, which were duly recorded in the mesne conveyance office for Laurens County, on the 19th day of February, A. D. 1890. III. That on the 9th day of November, A. D. 1890, the defendant, B. F. Ballew, as sheriff as aforesaid, advertised in the ‘Laurensville Herald,’ a newspaper published in the county of Laurens, and is now continuing to advertise, from time to time, in said newspaper, the said two lots for sale, for the satisfaction of an alleged judgment in favor of the defendant, G. W. Shell, as clerk as aforesaid, against the said Hewlet Sullivan, a copy of which advertisement is hereto attached, and made part of this complaint, to wit: ‘Sheriff’s Sale, for December, 1892. By virtue of sundry executions to me directed by the clerk of the court for Laurens County, I will sell, on the first Monday in December next, during the legal hours of sale, before the court house door, in Laurens, the following property, to wit: Also,*519 one hundred and sixty-eight (168) acres of land, more or less, situated in Laurens County, State aforesaid, bounded by lands formerly belonging to Fannie Goodgion, Thomas W. Traynham, William H. Poole place, and Beedy Biver, said tract being a part of the old home place of Hewlet Sullivan, deceased, and by him devised to Sallie Mahaffey and Hettie Parkins, and by them sold to Dr. J. P. Latimer, who is now in possession of the same; levied on as the property of Hewlet Sullivan, deceased, at the suit of G. W. Shell, as clerk of court, vs. Hewlet Sullivan, deceased, defendant. Terms cash. Purchaser to pay for papers. B. F. Ballew, S. L. C. November 9, 1892. 52 4t.’ IY. That there are other assets of the estate of the said Hewlet Sullivan, both real and personal, amply sufficient to satisfy the said judgment without recourse upon the lots hereinbefore described, which fact is well known to the defendants; and if the defendants be allowed to proceed to the sale of the said lots, great and irreparable loss and damage will thereby be brought upon the plaintiff herein * *
Both the defendants answered the complaint, but the view of the case hereinafter expressed by this court renders it unnecessary to set forth the issues raised by them. -The case was referred to F. P. McGowan, Esq., as special referee. Defendants interposed an oral demurrer to the complaint, before the special referee, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and when the case was heard by his honor, Judge Wallace, upon exceptions to the report of the special referee, he confirmed the report, and ordered that the complaint be dismissed. Plaintiff’s appeal to this court questions the ruling of the court below in sustaining such demurrer.
In the case of Bleckeley, Brown & Fretwell v. Branyan, 28 S. C., 445, it is held that the owners of land will not be affected by a sale under judgments that are nullities. On page 450, the court says: “It seems to us that, after the former decision of this court, the plaintiffs occupied simply the position of purchasers of the land, holding the legal title thereto, and, as such, had no grounds to enjoin the sale under appellant’s judgments” — citing Wilson v. Hyatt, &c., supra. The case of Gillam v. Arnold, 32 S. C., on page 509, says: “The property levied upon is real estate in the possession of the plaintiff, and if the defendants undertake to sell it under a void judgment, how would that injure the plaintiff? All she has to do is to forbid the sale, give notice of the defect in the judgment, and retain the possession; and if any one chooses to purchase after this, it is difficult to understand how she could be ousted from the possession, if, in fact, the judgment can be shown to be void in any proper proceeding instituted for that purpose. Wilson v. Hyatt, 4 S. C., 369.” The complaint in the above mentioned case was for injuction, which was refused.
Chancellor Carroll, in denying the injunction on Circuit, in the case of Moore v. Wright, says: “It seems only just to require that those who insist on sufficiency of remedy as a means of payment should be obliged to take the risk and delay of enforcing it on themselves. Aldrich v. Cooper (Am. Notes), 2
It is the judgment of this court, that the judgment of the court below be affirmed.