40 S.C. 41 | S.C. | 1893
This action was brought to a hearing
before his honor, Judge Izlar, in the Court of Common Pleas for Union County at the October term, 1892, and the decree of the court having been rendered on the 3d of January, 1893, in favor of the plaintiff, the defendant has appealed therefrom on twenty-eight grounds, to wit:
That the Circuit Judge erred in finding: 1. That James
Before undertaking to consider in their order the numerous
Although the law contemplated a surrender by Munro to Peake within less than thirty days after Peake duly qualified as such master, of all the assets of the office of the master, yet, no doubt by an arrangement between these gentlemen, the outgoing and incoming master, Mr. Munro did not formally assign the contract of Young for his said purchase until early in the year 1892. Efforts were then made by both these gentlemen to induce Col. Young to close up this matter by giving his bond and mortgage; they tendered to him deeds for the lot of land in question. At last, Col. Youngflatly refused to comply with his bid, still holding possession of the lot of land in question. Peake, as master, then brought this action against Young, as defendant, reciting all the foregoing facts, and demanding a judgment of the court against the defendant, by which the defendant should be required to perform said agree
Judge Izlar heard the testimony in open court. The plaintiff alone introduced testimony, the defendant offered none. The testimony offered corroborated all these facts pleaded in the complaint. By his decree, Judge Izlar adjudged that the defendant should perform his contract of purchase, in accordance with the terms of the original decree for sale; that the plaintiff, as master, should execute and deliver to the defendant a deed of conveyance of the premises, but that said deed should be delivered simultaneously with the execution of bond and mortgage by defendant, and for costs to be paid by defendant. However, in case the defendant failed to complete his observance of his duty in the premises by either executing the bond and mortgage or by paying in cash on or before 1 February, 1893, that the lot of land should be sold by the master on sales-day in March, 1893, or on some convenient salesday thereafter, and apply the proceeds of sale to the payment of the costs of the action and to the satisfaction of the amount due by Col. Young on his contract of purchase, and in case of deficiency, the defendant shall pay the same.
Munro ceased to be master on 1 January, 1891, and the present plaintiff became entitled as his successor to the moneys on hand, books, papers, etc., of the office. Section 457 of the General Statutes of this State. Now the book of sales was transferred and also the money paid by the defendant on his contract of purchase. So that the present plaintiff was, in the eye of the law, clothed with all the rights of his predecessor in office as against Young. The plaintiff, under a misconception of his powers, offered to convey to Young, but without an order therefor he was powerless in this respect, for he had not made the sale. Thus we have before us: A valid power in the master, Munro, to sell to Young; an actual contract by Young to purchase; the payment by Young of a part of the purchase money on his contract to purchase; the fact that Young had been let into possession of the land; no power in Munro to convey after he ceased to be master; no power in Peake, his successor, to convey; and no refusal on the part of Young to complete his purchase, until after Peake had qualified and entered upon the duties of his office as master, as the successor in office of Munro. What power over this land did Young have? He was in possession, and had paid part of the purchase money. What power in his office as master did Peake have to force Young to comply 1
Where one, under a contract to purchase, is let into possession of land, and from any cause the owner of the fee declines to go further in the proposed sale, such possession of the would-be purchaser is, in the eye of the law after such declination of the owner, merely permissive of the true owner, and the relation of tenant at will is created by the law as to such would-be purchaser’s possession; but where one is let into possession under a contract to sell, evidence of which contract to purchase is reduced to writing, and such purchaser has paid part of the purchase money, a different rule prevails. In the latter case, the one who sells and who holds the title is declared to hold the title in trust for the purchaser, and the purchaser has an equitable claim for title, and in addition the vendor
So in the case at bar, while Young, under his contract to purchase, evidenced by the entry on the sales book of the master, Munro, payment of part of the purchase money under such contract, and being let into possession of the land sold, has the right to treat the legal title as being held as his equitable estate, yet he has no legal title to the land and cannot have, until the payment of the purchase money under his contract for such purchase. But the vendor has the right to enforce the payment of such purchase money, and cannot be called upon to convey the legal title until such payment is made. Now here, who has created a breach of duty? Is it not clearly Young, the purchaser? Did the master, acting for the court, ever refuse to make title, if Young would comply with his contract for this purchase? The Court of Common Pleas, sitting as a Court of Equity, has complete control of this sale. And inasmuch as justice to all parties concerned, required that an allegation of the facts should be made to the court, in order that the rights and interests of all concerned should be sub-served, and as the pleadings in an action and testimony thereunder are the methods recognized in law whereby these results may follow, we can see no good reason for withholding our approval of the plaintiff’s course to the defendant, by instituting this action. Defendant seems to question plaintiff’s course without an order therefor. Parties in interest, such as creditors, might raise such a question, as the master, to a certain extent, is trustee for .them. He is to receive, under the
We do not feel called upon, nor do we deem it pertinent to a proper decision of the legitimate issues growing out of this action, for us to decide whether the act of 1840 governs the master or his predecessor in office. We fail to find such irregularity, on the plaintiff’s part, in this action as to shut him off from the relief he seeks; for it seems to us he had waited but a reasonably short time on the defendant, Young, before he tried conclusions with him in court. The patient forbearance of Munro seems to have been wasted upon the defendant here. Indeed, the previous master, Munro, was entirely too patient. His duty would have been better answered by a prompt report to the court of this negligence of Young. This waiting policy has nothing to commend it, where the rights of others may be jeopardized. Let all these exceptions we have enumerated under this branch of the discussion be overruled.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.