35 S.C. 354 | S.C. | 1892
The opinion of the court was delivered by
The plaintiff, as master for Union County, brings this action for the foreclosure of a mortgage of real estate, given to secure the payment of the credit, portion of the purchase money of a tract of land sold by him as such master under proceedings for the settlement of the estate of William Long, deceased. Defendant in his answer admits the execution of the note and mortgage sued upon, but sets up as a defence the following : that the land, the purchase money of which he is now sued for, originally belonged to William Long, who by his will devised it to his wife Miriam for life, with contingent remainders to others, as appears by a copy of said will filed as an exhibit to his answer; that after the death of the said life tenant, proceedings were instituted for the settlement of the estate of said William Long, to which none of the contingent remaindermen were made parties, although some of them were then in esse; and that under an order made in said cause, which is still pending, the land in question was sold and bought by the defendant at its full fee simple value, he then supposing, and being so advised by eminent counsel, that he was buying a fee simple title, but that he is now informed and believes that he was erroneously advised, and that he bought only a life estate; and he therefore prays judgment, that the complaint be dismissed, or that the proceedings in this case be stayed until the proceedings under which the land was sold be amended, by making the contingent remaindermen parties thereto, so that he may obtain a fee simple title.
All the issues in the action wrere referred to a referee, or special master, who made his report, overruling the defence set up, and recommending that the plaintiff have judgment of foreclosure, and this report, being heard by his honor, Judge Norton, upon exceptions thereto, was duly confirmed. From this judgment defendant appeals upon the several grounds set out in the record.
We do not propose to take up these exceptions seriatim, but shall confine ourselves to the consideration of the questions really presented. For this purpose it will be necessary to state certain facts, gathered from the report of the special master and from the testimony filed with the report. From these sources we learn that the land was sold under an order made in the case of Smith
the late Court of Errors, it cannot be doubted that a purchaser of land who has accepted the title, and is in undisturbed possession, cannot, unless fraud or mistake is showm, sustain an action for rescission, or claim an abatement of the price, on the mere ground that there is an outstanding paramount title in another, by which the purchaser may at some time be defeated.
' But, in addition to this, the appellant here was a party to the action in w’hich the order of sale was granted, and if such order was made in the absence of necessary parties, he is equally responsible with all the other parlies to that action for the omission to bring all necessary parties before the court, before the order of sale was made, and if he sustains any injury by reason of such omission, it must be attributed to his own fault or error of judgment, from which he can claim no relief — certainly not in this action, brought to recover the purchase money of property which he participated in inducing the court to sell, and of which he is now in the undisturbed and unchallenged possession. But, in addition to this, it seems to us that if appellant is entitled to any relief at all, as to which we express no opinion, he should seek it in the case in which the order of sale was made, which is still pending; and in fact the record before us shows that the appellant has sought relief there, but with what result, the record does not show.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.