Tompkins v. Tompkins

39 S.C. 537 | S.C. | 1893

The opinion of the court was delivered by

Mr. Justice Pope.

It seems that in 1877 the plaintiffs, J. G. Tompkins and others, exhibited their complaint on the equity side of the Court of Common Pleas for Edgefield County against S. S. Tompkins and J. W. Tompkins, as execu tors of the last will of James Tompkins, deceased, and J. L. Tompkins and F. A. Tompkins, as defendants, wherein in general terms it may be stated that the object was to withdraw from said executors the further control of the estate of their testator, that their accounts as such executors might be stated, &c. Creditors of the testator were called in. Decree was made and carried on appeal to the Supreme Court. A portion of the real estate of testator was sold under the order of the court, but a tract of over 1,000 acres, known as the “homestead tract,” was reserved from sale. The cause remained on the calendar of the Court of Common Pleas for Edgefield County down to the present time. At the March term, 1891, of said court, Judge Hudson passed an order directing the sale by the master of this “homestead tract” of land on the first Monday in November, 1891. No appeal was taken from this order.

The master advertised the sale to take place on first Monday in November, 1891, but at the suggestion of one of the counsel interested in the cause, such master, without any direction from the court, withdrew the land from sale, but readvertised the land for sale on the first Monday of January, 1892, again acting without any authority from the court. He sold the land to W. R. Parks at the price of $3,250, said purchaser complying with his bid by paying one-half of the purchase money in cash, but before deed was executed by the master or a bond and mortgage by the purchaser, notice from S. S. Tompkins was given to such master and the purchaser Parks that he objected to such sale. Nevertheless, after such notice, the master executed a deed to the purchaser, and the purchaser gave his bond, secured by mortgage. Thereafter a motion was made ab the March term, 1892, before his honor, Judge Izlar, to refuse to confirm the sale. This motion was made on numerous affidavits. Judge Izlar made an order setting aside the sale, and directing the master to resell the said premises on the first Monday of November, 1893, in accordance with the terms of Judge Hudson’s decretal order of March 7th, 1891, and pay out the proceeds of such sale as directed in Judge Hudson’s order.

From this order of Judge Izlar two separate appeals are taken, one on behalf of S. S. Tompkins, and one by W. R. Parks for himself. The grounds of Mr. Tompkins’ appeal are: 1. That said order was made without any motion therefor, and without notice to this defendant, or opportunity of arguing the same.¹ 2. That said order was made without having the necessary parties before the court, the legal representatives of appellant’s deceased co-defendants, J. W. Tompkins, James L. Tompkins, and F. A. Tompkins, who represent in the aggregate one-half interest in said land, they never having been made parties to this suit. 3. That his honor erred in ordering any further sale of testator’s land until the proceeds of former sales had been accounted for and applied, and the exact amount of each subsisting claim ascertained, and the parties in interest given the opportunity of settling the same without selling the ashes of their ancestors. 4. That his honor erred in ordering any part of the proceeds of sale to be paid to Messrs. Gary & Evans, their said claim being an individual liability of appellant’s co-defendant, J. W. Tompkins, if it was ever a claim against the estate, being barred by the terms of the order of this court calling in the creditors of said estate, as directed by the Supreme Court.

W. R. Parks presented the following grounds- of appeal: 1. Because, as matter of law, his honor erred in refusing to confirm the master’s report of sale herein. 2. Because his honor erred in setting aside the sale of the “homestead tract,” made by the master on salesday in January, 1892. 3. Because, if his honor did not err in ordering the “homestead tract’’ to be resold, he erred in refusing to provide for the return by the master to W. B. Parks of the amount paid by him to the master for the purchase money of said tract.

1 We will first consider and dispose of the appeal of Mr. Tompkins. We cannot see any virtue in his first ground. Judge Izlar was asked at the regular term of court in March, 1892, at Edgefield, by this appellant to protect him against what he conceived was an invasion of his rights by the master, by a disregard of the terms of the decretal order of Judge Hudson, wherein a tract of land known as the “homestead tract” was required to be sold. When Judge Izlar viewed the terms of such order, and compared the terms of sale adopted by the master, he saw there was, what he conceived to be, a fatal variance. To provide a relief to the plaintiff, he tried by his order to place all the parties as they were under the order of Judge Hudson. It would be difficult to conceive what other course the Circuit Judge could have adopted during term time.

2 The reformation or change in the administrative part of Judge Hudson’s decretal order was all that was done by Judge Izlar, independent of setting the sale aside. This act of Judge Izlar forms no part of an order on the merits. We fail to perceive any injury to this appellant. Besides, there is nothing in the case which informs this court that a decree was not made in this cause when all the parties were alive and allowed to speak for themselves. The previous sale of two thousand acres of land furnishes strong evidence of this. The third ground of appeal seems fanciful. There is nothing to show us that all due regard had not been paid to the rights of all the parties to this controversy in the action of the court below. It certainly had remained on the calendar of the court in Edgefield sufficiently long to enable any amount of scrutiny into the claims of creditors. Besides, this court cannot be called upon to assume the existence of errors in the court below. They must be made to appear by the “Case,” and here there is a woful silence in every important particular. The fourth ground of appeal is disposed of by the views we have expressed in disposing of the first ground of appeal. These four grounds of appeal must be dismissed.

3 It remains now to consider the complaint of W. R. Parks. 1. Was it error in the Circuit Judge to refuse to confirm the sale made by the master to Parks? Let us consider this matter seriously, for it involves the decision of a question of practice that is of moment to purchasers at judicial sales. We should be slow in adopting any views that would create doubt in the minds of would-be purchasers at such sales. It is of the utmost importance that such sales should be regulated by such wholesome rules, the effect of which will cause the property thus exposed to sale to command its full value, by obtaining bidders to agree to purchase at such figures as represent that full value; and technical difficulties, growing-out of such a sale, ought not only to be discouraged, but when made, speedily disapproved of. The court of last resort in this State has repeated the rule to-be, that purchasers are only to be concerned with the facts, that the court that orders the sale has jurisdiction, and that all the parties essential to the cause have been made parties. This rule seems to us to include the idea of an order for sale, and imports that purchasers should be bound to observe the terms of the order for the sale. The courts of this State are interdicted from “opening the bids,” as it is called. But it has been held that where a sale has been made under a decree of the Court of Equity in this State, and there has been a failure by the master to observe the terms of such decree, the court will refuse to confirm such sale. Baily v. Baily, 9 Rich. Eq., 392. Chancellor Dargan, as the organ of the court in that case, said: “But where the court has made an order of sale, of which a notice is to be given by advertisement for a given time, such direction, as well as the other terms [italics ours], become the law of the case. It becomes the condition on which the authority is to be exercised, the non-performance of which will destroy the power.” Again he says: “The decree investing the commissioner with power to sell is held sufficient, if he conforms to the conditions of his authority.”

The Circuit Judge elaborates this view in his decretal order that will accompany the report of this case. We concur in the views expressed by him. We suppose it is scarcely necessary that we should say, in announcing this conclusion, that no reflection is intended to be made upon the worthy gentleman who was master and made this sale. His motives were praiseworthy, but he was guilty of an error. It may be stated, in passing, that great caution should be observed by officers charged with the duty of making sales under decrees of courts. We will not say that they are never justified in failing to sell on the day named in a decree, without the authority of an order of court for that purpose. It is decidedly the safest and best course, however, to obtain such order. But for an officer, who has failed to get such an order, of his own motion to fix a new day for such sale, cannot be sanctioned. It is true, if all parties in interest had consented to this course, and the court had thereafter sanctioned it by the passage of an order, the error would have been cured. This ground of appeal is overruled. And for the same reason the second ground of appeal is dismissed.

4 The third ground of appeal seems to us to be meritorious. In this case everybody concerned acquiesces in the sale except S. S. Tompkins. The purchaser has paid into court $1,625 of his money, a large part of which has been appropriated to the purposes of the action under the decree of court. Now, if there is one thing over others in our system of jurisprudence that merits the commendation of all, it must be the flexibility of the principles adopted by Courts of Equity, by which they are made to subserve the needs of each particular case. Ought not those principles to be applied here? It seems so to us. Under our law, William R. Parks, by being a successful bidder at the sale provided for by a decree in this cause, has, to a certain extent, become a party to this action. His money has been paid into court and used for the purpose of the action, under an honest mistake, it is true. Only one party to the action seeks any relief against,him. The Circuit Judge orders a new sale, without any provision being made for his (Parks) protection. This is error, and must be rectified.

After much reflection, we have concluded that a decretal order should be made on Circuit, whereby the master should be directed to sell the “homestead tract” of land, here in dispute, after twenty-one days public advertisement, for one-half of the purchase money to be paid in cash and the balance on a credit of twelve months, the credit portion to be secured by bond of the purchaser and a mortgage of the lands by the purchaser, but that such sale shall, in the advertisement and in its conduct, provide that no bid will be received of less than $3,250 ; and that if no more than $3,250 is bid at such sale, then the purchase by Parks shall be confirmed; but if more than $3,250 is bid, that then the sale to Parks shall be annulled, his deed from the master for the premises shall be cancelled and delivered up by him, and that he shall be paid the sum of $1,625 in cash, and have his bond and mortgage cancelled by the master and delivered to him (Parks).

It is the judgment of this court, that the judgment of the Circuit Court be modified as herein required, and that the cause be remanded to the Circuit Court, without any delay of the remittitur going down, for the purpose of having the Circuit Court prepare the decree in accordance with the directions of this court.

NOTES OF CAUSES Decided During the Period comprised in This Volume and not Reported in Full.

1 This ground was probably intended to be aimed at Judge Hudson’s decree. (See grounds of motion as stated in Judge Izlar’s decree.) But it is alleged as a ground of appeal from Judge Izlar’s decretal order, and this court so considered it. — Reporter.