State ex rel. Harley v. Lancaster

46 S.C. 282 | S.C. | 1896

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Pope.

R. H. Harley, having by petition applied to his honor, Judge Watts, at Barnwell, in the Court of Common Pleas, for a writ of mandamus to compel J. W. Lancaster, as sheriff, to execute to him a deed for a certain tract of land, situate in said county and State, containing 540 acres, which he, Harley, claimed he had purchased at sheriff’s sale, and the defendant having answered said rule, Judge Watts issued an order, dated 23d day of August, 1895, denying "such writ. From this order the appellant has appealed. The petition, the answer, and the judge’s order will be reported. The grounds of appeal are as follows:

1. That his honor, the presiding judge, erred in concluding- as matter of law that the mere fact that there was a dispute as to the right of the sheriff to make the deed prayed for in the petition, was sufficient to prevent the issue of a writ of mandamus to compel the sheriff to execute a deed of conveyance to the relator as purchaser at the tax sale mentioned in the petition.

2. That his honor, the presiding judge, erred iu not directing a writ of mandamus to issue, to compel the sheriff to execute the deed of conveyance to the relator as purchaser of the lands mentioned in the petition, because the return of the sheriff fails to state facts sufficient to show cause why he refused to execute said deed.

(a) In that the relator, as purchaser at the tax sale, acquired an inchoate title in the land purchased, by virtue of his bid and its acceptance by the sheriff, which was not forfeited by his failure to comply with his bid on the day of sale, (b) In that payment of the taxes for which the land was sold by a mortgagee after the sale to a purchaser, whose bid has been accepted and the entry of the sale made on the sheriff’s sale book in the name of the purchaser, can have no effect whatever upon said sale, (c) In that the tender made by the relator to the respondent, on the 10th day of August, 1895, of (1) $35.61 in cash, good and lawful money of the United States, $32.35 being the amount due on the said tax execution for all purposes, and $3.25 in full of fee for the title deed and probate of the same, said sums being based upon the calculations made then and there by said sheriff; (2) an order upon the said sheriff to pay over to 3'our petitioner, R. H. Harley, the balance of the bid, that is, $1,867.65, after deducting the amount due on account of said tax execution. This order being signed by the defaulting taxpayer, the said H. M. Duncan, and giving to said R. H. Harley the right to receipt for said balance; and (3) a receipt in full against the said sheriff for the said sum of $1,867.65, on account of the claim of the said H. M. Duncan, defaulting taxpayer, for the said balance, said receipt being signed by your petitioner, by virtue of the said order of the said H. M. Duncan, last aforesaid, was a full and complete compliance with the terms of the relator’s bid at said sale, the defaulting taxpayer having the right to assign the surplus proceeds of sale, after payment of the amount due on account of said tax execution to the relator, to authorize him to receipt to the sheriff therefor, (d) In that it was not necessary for the relator to show the effect of deed, or that it would avail the party seeking it.

1 2 3 4 5 6 We have required the petition and return to be printed in the report of the case, .because the facts underlying the contention are there made manifest. Judge Watts refused the writ, relying upon the case of The State ex rel. Snelling v. Turner, sheriff, 32 S. C., 348, as authority therefor, because he thought there was a dispute as to the right of the sheriff to make the deed, as prayed for in the petition. It is very clear that mandamus will lie to compel the performance of some specific duty imposed by law of a ministerial character, and in which the relator has a legal interest. State ex rel. Gibbs v. Morrison, as sheriff, 22 S. E. R., 605; Morton, Bliss v. Comp. Genl., 4 S. C., 430. In the case at bar, the law of the State devolved the duty upon the sheriff to sell the land in question to pay the taxes due by the owner of the land, and to make title to the purchaser at the sale made by him, upon a compliance by such purchaser with his bid; and thereafter, upon the full satisfaction of such taxes, and the costs and fees incident to the sale, to pay any surplus of the proceeds to the delinquent taxpaper, 19 Stat. at Large, 863, section 2. The sheriff made the sale, and entered the- purchaser’s name as the purchaser in his book of sales. The sheriff could not make the deed on day of sale, but when the purchaser offered to comply, a day or two after the sale, the sheriff refused to make title to the land, alleging that after he had made the sale, and after the hour for official sales had been passed, that the attorney of some bank in Charleston claimed to hold a mortgage on the land sold, came to him and paid the taxes. The statute must be the sheriff’s guide; he must obey its mandares; having sold the land-to the relator, as the highest bidder, and entered his name on his books as the purchaser, the purchaser (the relator here) acquired rights and assumed liabilities respecting his purchase of these lands. .When such bidder offered to pay the money called for by his bid, it was the plain duty of the sheriff to make the deed called for by the statute. It was but a ministerial act. It can make no difference, that one claiming to be the holder of the mortgage paid to the sheriff the delinquent taxes, for such an act occurred after the relator had purchased, after his rights had- become fixed, so to speak. Nor can it make any difference, that the delinquent taxpayer did not appear in person to receive the balance of the proceeds of sale after the taxes and charges had been paid. Such delinquent taxpayer had a perfect right to depute the relator to receive for him and to receipt to the sheriff for such surplus. We do not undertake to pass upon any question connected with any holder of an alleged mortgage. We confine our decision to the question, and the parties before us. To our minds, it is clear that the Circuit Judge was in error. The decision of this court, referred to as authority, State ex rel. Snelling v. Sheriff, supra, is clearly distinguishable from this case; for in the former there was a clear, legal remedy possessed by Snelling against the sheriff, while here there is not.

It is the judgment of this court, that the order of the Circuit Judge be reversed, and that this proceeding be remanded to that court, that the writ of mandamus shall issue.

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Dissenting Opinion

Mr. Justice Gary,

dissenting. Section 349 of the Revised Statutes, is as follows:

7 “Under and by virtue of said warrant and execution, the sheriff shall seize and take exclusive possession of so much of the defaulting taxpayer’s estate, real or personal, or both, as may be necessary to raise the sum of money named therein and said charges thereon, and, after due advertisement, sell the same before the court house door of the county, on a regular salesday and within the usual hours for public sales, for cash, make title therefor to the purchaser complying with terms of sale, and annex to said title the duplicate warrant thereon of his action thereunder, put the purchaser in possession of the property sold and conveyed, and, after deducting from the proceeds of sale the amount of taxes and charges, shall pay over the •excess, if any there be, to the defaulting taxpayer, and the taxes so collected to the county treasurer.”

The taxes due upon the land amounted to $32.35. To satisfy this amount due for taxes, the sheriff sold 540 acres of land, which was bid off at the price of $1,900. There are two requirements of the section just quoted to which we desire to call special attention: First, the sheriff was only allowed to sell so much of the property as was necessary to raise the sum of money named in the execution, and the charges thereon. Second, the sheriff was required to sell for cash. If he had observed either of these requirements, this controversy would not have arisen. It seems to me that, to give to the words “defaulting taxpayer” so strict and technical a construction as to preclude the consideration of the mortgagee’s rights, would also force a strict and technical construction of the word “cash.” There can be no doubt that, if the purchaser had paid the “cash” to the sheriff, the mortgagee would have had. the right to an adjudication of his claim to the surplus proceeds of sale,' provided he instituted his proceedings before the sheriff paid the money to the defaulting taxpayer. Furthermore, if the mortgage was recorded, it might be that the sheriff would °be held liable, if, after such notice, he paid the money to the “defaulting taxpayer.” .1 cannot believe that the statute intended a mortgagor should receive the surplus proceeds of sale in preference to his mortgagee. In such a case as this the rights of the mortgagee are transferred to the surplus proceeds of sale, just as in other sales under execution where there are subsequent mortgages.

I am, therefore, of opinion that the petitioner is not entitled to the writ of mandamus: 1st, because the sheriff clearly violated the statute, in selling all the land to satisfy taxes amounting to only $32.35; and, 2d, because the sheriff has not received the “cash” from the purchaser.

I, therefore, dissent frotó the opinion announced by the majority of the court.