38 S.C. 188 | S.C. | 1893
Lead Opinion
The opinion of the court was delivered by
It is earnestly urged, however, that the appellant bought under a mistake of law, caused by the advice of eminent counsel, and is, therefore, entitled to relief. As was said in the case of Munro v. Long, 35 S. C., 354, when this same question was before this court in a different form: “Without undertaking to
This language is not cited as decisive of this appeal, inasmuch as the court, in Munro v. Long, expressly declined to decide the question as to the right of appellant to relief in the case in which the order of sale was made; but it is cited for the purpose of showing that the appellant is not eutitled to relief upon the ground of a mistake of law. But I am unable to perceive upon what principle of law the appellant can obtain relief, even under the case in which the order of sale was made. Even a third person, who becomes a purchaser at a judicial sale, is bound to inquire whether all necessary parties were before the court when the order of sale is made. (Trapier v. Waldo, 16 S. C., 282); and if so, much more is it the duty of a purchaser who was originally a party to the proceedings. This being so, the appellant must be regarded as having bought only the interests of the parties who were before the court; and he cannot now, after his contract of purchase has been fully executed, require that other parties [be brought in], who, in a con tin
It seems to me, therefore, that the judgment of the Circuit Court should be affirmed; and this being the opinion of the majority of this court, the judgment of this court is that the judgment of the Circuit Court be affirmed.
Concurrence Opinion
concurring. The facts as to the only point of difference in this case have been sufficiently stated. It seems that William Long, by his last will, devised an interest in certain lands to his wife, Miriam, for life, with
Some time afterwards the purchaser, the said C. B. Long, discovered, or was advised, that in the proceedings under which he purchased, the contingent remaindermen in esse were not made parties; and when proceedings were instituted against him to foreclose the aforesaid mortgage for the land, he made the defence that his title was imperfect, because of the possibility that the contingent remaindermen might at some future day make claim for their interest in the land. But this defence was overruled, and the mortgage ordered to be foreclosed against him. See Munro v. Long, 35 S. C., 354, where the court said: “Underaction for a settlement of a testator’s estate, all the children of testator being parties thereto, a tract of land was purchased, at its full value, by one of these children, who was advised by counsel, and believed, that he was purchasing a fee simple title. The purchaser took deed, gave mortgage for the purchase money, and went into possession. Held, that he could not resist foreclosure of the mortgage, on the ground that he was mistaken in supposing that he had purchased a fee simple title, for, whether he erred in construing testator’s will to give to testator’s children an absolute estate, or in supposing that contingent remaindermen provided for in said will were not- necessary parties to the action under which the sale was made, it was not such a mistake of law as would be relieved against in the action for foreclosure. If entitled to any relief at all, it must be in the original case, still pending, in which the order for sale was made,” &c.
Thereupon the said Charles B. Long made an application for leave to file a supplemental answer in the-principal case, making the contingent remaindermen parties, in order to allow
As this seems to me to be a hard ease on the purchaser, I have spared no efforts to discover some principle or authority which would justify this court in granting the prayer of the application; but I am compelled to say that I have not been able to do so, without, in my judgment, running counter to all settled law upon the subject. The administration of the law ought to be as uniform as possible. We should not disturb and unsettle principle and wise rules of procedure, even under the great temptation to prevent a hardship. The exact truth is, that the matter complained of was, to a large extent, produced by the fault of the party himself. As a party on the record, he is bound by the judgment. As a purchaser, he was bound to make inquiry as to the jurisdiction of the court which ordered the sale, and whether all proper parties were before it. If the land had been sold under execution at sheriff’s sale, it is perfectly clear that, under the principle of caveat enyptor, the purchaser could have had no relief. The sale was not a forced sale under execution, but it was what is called a judicial sale; and, as said in the case of Trapier v. Waldo, 16 S. C., 282: “It is well settled that a purchaser at a judicial sale is bound to make inquiry as to the jurisdiction of the court which ordered the sale, and whether all proper parties are before it. There is no warranty at a judicial sale.”
Besides, it would seem that this very question was practically decided in the case of Munro v. Long, supra. It is true, that the parties were not the same, and, therefore, it can not be said that the question is technically res adjudícala; but it seems to me that the grounds upon which the decision in that case was placed apply with equal force in this.
I am, therefore, constrained to concur with the Chief Justice, that the judgment below should be affirmed.
Dissenting Opinion
dissenting. The most serious question presented by the appeal here is that relating to a defect of parties. It arises under these circumstances: [Here follows the statement which has been already given.]
While it is quite true that this court cannot view with approval any appeal that is based upon an error of fact or of law in the construction of a will, when there is no fraud or circumvention, parties to a controversy, or their privies, may have made (Cuningham v. Cuningham, 20 S. C., 317; Keitt v. Andrews, 4 Rich. Eq., 349); nor will relief in such cases be afforded when a title paramount in another is alleged, when no eviction has been had (Whitworth v. Stuckey, 1 Rich. Eq., 410; Lessly v. Bowie, 27 S. C., 193); yet we cannot hesitate in our duty to interfere where, in the action under which a sale was made, and while the parties and the fuud are still in court, and a most material defect will be perpetuated, that may be cured if new parties are made. Let us make this plain. When the testator made these provisions in favor of his children, he had it in his power to restrict their enjoyment of it. This he did, when he gave it to them for and during the natural life of each one of them. This he did, also, when he provided that the share of each one of them should not be subject to their debts, contracts or disposition. Could he have used stronger words than these to declare his intention, that the first takers, after the death of his widow, should not divest themselves of such property, indirectly by debts, or directly by sale while living, or by testamentary disposition to take effect at death? We have been impressed by this language of the will. Then, if these restrictions exist, how could these life tenants by a judgment of the court convert these lands into money, and receive that money freed from the restrictions of the will? When a master of the Court of Chancery sells lands for partition amongst the owners thereof, according to their respective rights therein, he simply acts as the agents of the parties. Tunno v. Fludd, 1 McCord, 121. And if, in the progress of a cause, the court becomes acquainted with some provision of an instrument before it, to which provision accidentally parties have failed to direct its attention, such court will not hesitate to apply the proper relief.
When, as in some cases, a tract of land becomes unproductive of income to those who have a life estate therein, with a remainder over therein contingent, and such contingent remaindermen, or some of them, are in esse, the Court of Equity will act upon the land; that is, with all these parties in esse before it, the land will be sold, and the fund arising therefrom will be substituted for the land, and this fund will be preserved, so that the life tenant may receive the interest thereon during his lifetime, and at his death the fund will be turned over to the contingent remaindermen. Thus, the purchaser of the land gets a fee simple title — the life tenant the benefit of the corpus let out at interest — the contingent remaindermen the corpus on death of life tenant. This power of the court is distinctly and carefully laid down in the opinion of the court in the case of Bofil v. Fisher, 3 Eich. Eq., 1, and has been adhered to ever since. In that case it was held, that the Court of Equity has the power to sell the estate, whether vested or contingent, of
In the case at bar, it is made to appear that there are contingent remaindermen in esse and within the jurisdiction of the court. While it is true that the land has already been sold, it is a question easily settled, with all the parties before the court, whether such a sale was fair, price full, and in all other respects such an one as realized on the purchase money paid therefor a sum equal to the value of the fee simple title therein. If such be the facts, the parties who are contingent remaindermen are as well protected by being made parties afterward as they would have been if original parties to the action. But if it be made to appear hereafter in the action that the purchaser did not pay full price, the sale should be rescinded. Assuming, for we express no opinion thereon, that the sale was regular and advantageous, then the decree in the court below should be made to protect the estate in remainder. Some scheme should be reported to the court whereby the interest in the corpus of the purchase money — we mean the $4,590.44, less the costs of sale, and master’s commissions— shall be paid to the life tenants during life, and at the death of each one of such tenants the share in such corpus shall be paid over to the child or children so surviving such deceased child; but also providing such child — -a life tenant — should die childless, such share of the one so dying shall be paid to his surviving life tenants, or their children, if they be dead. Of course, it follows that appellants’ exceptions which relate to this matter are sustained.
Judgment affirmed.
May 11, 1892. TJpon a petition for a rehearing filed in this case, the following order was endorsed