13 S.C. 203 | S.C. | 1880
The opinion of the court was delivered by
A. R. Mitchell, Robert Mure, S. Gourdin and James S. Gibbes, as A. R. Mitchell & Co., were the owners of the property in the city of Charleston known as “ The Tyler Cotton Press,” which consisted of the cotton press proper and several small lots adjacent. All the parties died except J. S. Gibbes, who, as survivor, in order to partition the property, instituted proceedings against the heirs and representatives of his deceased partners, entitled James S. Gibbes v. Anna J. Gourdin and others.
In this case an order was made for the sale of the partnership property, including the cotton press and the lots attached to it. On March 19th, 1874, the referee in the case, A. M. Huger, for the sheriff, C. C. Bowen, had the premises sold at public auction, upon the terms of one-fourth cash and the remainder in three equal annual installments. The sale was made under published advertisement, prepared by the referee “ from the best sources in his possession,” which was read at the sale, and which, so far as this property is concerned, is as follows: “All that lot, piece or parcel of land, known as the Tyler Cotton Press, with the buildings, tenements, hereditaments, machinery, steam engines, fixtures, presses and appurtenances thereunto belonging, situate, lying and being on East Bay street, Longitude lane and Church street, in the city of Charleston, which said lot of land is made up of several lots of land, and is generally described as follows: Butting and bounding to the east partly on East Bay street, and partly on land belonging to Godard Bailey; to the south, on lands now or late of estate Heilbron and estate Kirkpatrick; to the north, onLongitude lane, on land formerly of Miss Copdeville, and on land formerly of Godard Bailey; and west, on
At the sale, the appellant, R. Q. Pinckney,
Immediately after the sale, the appellant employed his .attorney to look into the titles, and, pending the examination,
Some of our cases have gone very far in allowing such defences. The grounds upon which they have been placed are not always clear, and sometimes apparently inconsistent. But the view which underlies them all seems to be this: That an action for the price of property is in some sort a proceeding to enforce a contract, and the equitable principle applies of refusing aid to enforce it except in such way as to do justice between the parties. It may be that this tendency has been increased by a desire to prevent multiplicity of suits, and by not always keeping in view the difference between real and personal property. But by whatever cause produced, we are satisfied that these discrepancies are more apparent than real, and that the rulings, as distinguished from the dicta of the cases, can be vindicated upon well-settled principles. The law requires that all contracts concerning the transfer of land shall be in writing. A purchaser must protect himself by covenants. It follows that where there is no express warranty none can be implied. Omission to warrant disproves intention to warrant, and if that could be contradicted by implication it would be not only creating a contract against the intention but proving it by parol. As to land, there can be no such thing as failure of consideration growing out of a breach of contract, or, as it is sometimes expressed, the equitable condition of sale; otherwise there would be, so far as that defence is concerned, no difference between a quit claim and a warranty. "We are of opinion that the proper principle is, that in cases without warranty the purchaser, when sued for the purchase money, may set up any defence which is independent of
These principles apply with increased force to sales made by public officers. In sheriff’s sales under execution, the rule of caveat emptor is absolute, and that is the general doctrine as to judicial sales made under order of court. It.is true that in such sales in this state the officer of the court is, in some sense, the agent of the parties, and, while the absolute rule of caveat emptor may not apply as in forced sales, yet it is well settled that in judicial sales of real estate there is no implied warranty. Commissioner v. Thompson, 4 McC. 434; Rover on Jud. Sales 177, ivhere the authorities are collected. The rule is not so well established where the sale is of personal property, as to which we have adopted the civil law doctrine, “ that sound price demands sound property,” both in respect to condition and title. The following cases, sometimes relied on to establish the principle of mere failure of consideration as a defence, are in relation to personal property. Com’r of Roads v. Macon & Foot, 2 Brev. 105; Eastland v. Longshorn, 1 N. & McC. 194; Com’r v. Smith, 9 Rich. 520; Parker v. Partlow, 12 Rich. 679; Trimmier v. Thomson, 10 S. C. 189.
Was there in this case such fraud or misrepresentation as will -
Did the appellant rely upon that statement in the advertisement, and was he misled and induced by it to make the purchase ? The property was to be sold under order of the court. Lot No. 1 was divided from the other property, and was in possession of another. It was marked out by being shaded, blue, and was specially referred to by a note on the face of the plat. Under these circumstances it is difficult to resist the impression that the appellant did not exercise ordinary diligence in obtaining the information which the facts suggested and which was at hand— especially as Gibbes, who was to have an interest in the purchase, and who must have known all about the property, was present. But the appellant swears positively that he was ignorant of the facts; that he relied exclusively upon the advertisement, and was deceived by it into the purchase of the property.
Assuming that there was a mistake in the advertisement, and that the appellant was in ignorance of it at the time he bid off the property, and that he used proper diligence in informing himself, is he now entitled to have an abatement for the value of that lot? We think not. While it may be that he was ignorant at the time of the sale, it is admitted that he had full knowledge of the alleged deficiency on June áth, when he voluntarily closed the purchase by paying the cash installment and executing bonds and mortgage for the credit portion of the purchase and taking titles. Up to that time the purchase was incomplete. The court confirms judicial sales, and in.doing so exercises large powers in correcting errors. Reasonable time is always given for the examination of titles, and, if necessary, a reference will be ordered. From the day of sale up to the day on which he gave his bonds and mortgage and accepted title, the appellant might have refused to comply with his bid, and, if misrepresentation could have been shown, the court would not have decreed against him specific performance.
It seems that he was not willing to relinquish his purchase even after all the facts were known. He said nothing about the deficiency until he complied with the terms of sale and demanded title on June 4th, which was the same, in effect, as if he had bid off the property that day with a full knowledge of the deficiency. He chose to stand to his bargain, indeed insisted upon it, after he had full knowledge, and he cannot be heard to impeach his own bonds, in whole or in part, or to say that he is damaged by misrepresentations when he knew the truth of the matter so represented. “ If a vendee becomes acquainted with the fraud before completing his bargain and chooses to' go on, a court of
But it is urged for the appellant that the compliance with the terms of sale after knowledge, should not operate as a waiver in this case, for the reason that while he was ignorant he had gone into possession and made such expenditures in repairs, that it was too late to recede without a sacrifice; that his condition then left him no other alternative but to carry out the purchase. There is no force in this; It was premature in him to take possession ■before the title was examined. He knew that in doing so he took the risk, for, in his answer, he says, that he took possession “ having full confidence in the integrity of the parties.” Taking possession itself, under certain circumstances, amounts to a waiver of the defence here made, and, if so, that could hardly destroy the effect of closing the bargain. One incautious act cannot justify another. Sug. on V. & P. 398, lays it down that “a
But it is still further urged for the appellant that at the time-he closed the agreement, or rather the day before, he gave notice to the sheriff of the deficiency, and of his determination to insist upon the abatement. Notice cannot alter the case. The waiver-does not rest upon the intention of purchaser, as to whether he will or will not make the defence, or whether such intention is known or unknown, but upon the single fact of doing the act with knowledge. It is not suggested that the appellant expressly waived or intended to waive any right which he might suppose-that he possessed, for the exact contrary is true; but the waivér was the effect of executing bQnds, according to the contract, against any defence to these same bonds, upon grounds then known to him.
Giving the bonds for the whole amount was inconsistent with paying them only in part. Ex parte notice of such intention could .not make a new contract. The only contract was the old one, and the appellant could not close it, according to its terms,, either with mental reservation or public notice that he intended to pay only according to the facts as he knew them to exist at the time.
The Circuit decree is affirmed and the appeal dismissed.
The surveyor and the purchaser bear the same name, but are different persons.—Reporter.