35 S.C. 391 | S.C. | 1892
The opinion of the court was delivered by
On February 6,1888, W. II. Kerr, as the clerk of the court of Fairfield County, conveyed to William H. Lyles, his heirs and assigns forever, “all that piece, parcel, or tract of land, lying and being in the county and State
After the death of Mr. Dawson, the said W. H. Lyles instituted this proceeding for the partition or sale of the premises, and all the parties in interest being before the court, assenting, his honor, Judge Witherspoon, on December 17, 1890, ordered the premises sold, and by agreement of the parties the sale was made by A. C. Haskell, the surviving trustee, before the court house door in Columbia, after notice of the sale, in terms as follows : “All that tract or parcel of land in Fairfield County, known as the ‘Anderson Quarry Tract’ [describing it].
According to this advertisement, the sale was made by Judge Haskell, the surviving trustee, in Columbia, on salesday in February, 1891, and James F. Redding was the highest and last bidder for the land at the price of $24,610 ; but he declined to comply, which declination was reported to the court. Thereupon a
“First. Because his honor erred in not holding that the minor children of Emma E. Anderson were not bound by the decree made in the case of Ryan, assignee, v. Anderson and others, under which William H. Lyles purchased and held the ‘Anderson Quarry Tract’ of land,” with four specifications, which will be considered in order.
“Second. Because upon a resurvey of the property contracted to be purchased, there is a deficiency of two hundred acres, which is admitted to be of the value of $1,000, and his honor erred in not holding, either that respondent is not bound to comply or is entitled to reduction pro tanto for said deficiency, it appearing distinctly by the advertisement under which he purchased, that the land comprised a certain number of acres, the titles to which were specially represented in said advertisement to be perfect, and under the terms of said advertisement a purchaser was entitled to expect the greatest accuracy.
Third. Because there is an unsatisfied mortgage on the premises contracted to be purchased by appellant as aforesaid, which is a lien thereon, viz., the mortgage made by W. H. Lyles to W. H. Kerr, C. C. O. P. for Fairfield County, and assigned to Mary C. McCarter, and his honor erred in compelling appellant to comply with the terms of sale, without making provision for the payment and satisfaction of said mortgage.
Fourth. Because his honor erred in requiring the respondent, appellant, to comply with the terms of sale, &c.
It appears that on August 9,1882, the action was commenced, that at that time the premises were owned by Mrs. Emma E. Anderson, the wife of Thomas Anderson ; that the proceeding was instituted in Fairfield County to foreclose a statutory mortgage, and that both Mrs. Anderson and her husband were necessary parties, and the complaint prays against them (among others). Summons was issued and lodged in the office of'the sheriff of Fairfield County, with the sworn return that she and the other, defendants had been served “at their respective residences on August 10, 1882,” and one Milling made affidavit that Thomas Anderson and his wife, Emma E., “resided in Fairfield County” at the time said summons was served. After the said service of summons, but before she answered, Mrs. Anderson died, and James H. Rion, Esq., within a year, made affidavit of her death,
Copy of this order was served on Thomas Anderson and each of his four minor children on June 14, 1883, as returned “at their residence in Fairfield County.” James H. Rion, attorney, petitioned J. R. Boyles, Esq., judge of probate of Fairfield County, stating that the four children of Mrs. Anderson, deceased (naming them), were infants under 14 years, to appoint George H. McMaster their guardian ad litem, which was done, and the said guardian employed a lawyer, J. W. Hanahan, Esq., who appeared and answered for them. After the issues were thus made up, Judge Witherspoon referred it to J. E. McDonald, Esq., as special referee, to report the testimony and report on the truth of the statements in the pleadings. The report was filed, and Judge Fraser, on September 21, 1883, after reciting that ail the parties were properly before the court, made a decree of foreclosure, directing the premises sold, and the sale was made, at which the premises were purchased by W. H. Lyles, the vendor. Under these circumstances, were the order of sale made by Judge Fraser in the case of William K. Ryan, assignee, v. Thomas Anderson, and the sale and conveyance thereunder void, in whole or in part ?,
When an infant has been made a party, he can only appear by guardian ad litem, appointed as follows : if he is a defendant and under the age of 14 years, or neglects to apply within 20 days after service of the summons, then upon the application of any other party to the action or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one; if he has none, to the person with whom such infant resides. See subdivision 2, section 137, of the Code. There is not even a sugges
It is, however, still further contended, that under the terms of the continuing order, the appointment of a guardian ad litem could only be made legally in the Court of Common Pleas. If there was a mistake in reference to this matter, it could be nothing more than a mere irregularity, which was cured by the judgment ; but section 136 of the Code expressly declares that a guardian ad litem may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge, &c. Trapier v. Waldo, 16 S. C., 276; Faust v. Faust, 31 Id., 576; In re Loney, 134 U. S., 374. There was no surprise to the infants; they had their day in court, they derived full benefit from the proceedings, and they are not here making complaint. We agree with the Circuit Judge that they were legally represented, and are bound by the decree and the sale- of the premises in the case of W. K. Ryan, assignee, v. Thomas Anderson et al.
Third. As to the unpaid mortgage owned by Mary C. McCarter. It was stated at the bar, that the decree of Judge Wither-spoon ordered this mortgage paid, and there was no appeal. We have not been able to find the decree ef Judge Witherspoon in the “Brief,” but it is admitted that the mortgage debt must be paid, and it is so ordered, by consent of the parties.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
The description is the same as that contained in the first paragraph of this opinion. — Reporter.