40 S.C. 114 | S.C. | 1893
The opinion of the court was delivered by
This is a law case, pure and simple, the sole purpose of the action being to recover a tract of land in Spartanburg County, described in the complaint as containing one hundred and fifty acres. The judgment of the Circuit Judge contains a statement of the case so full and clear, that any attempt to restate it could add nothing, and possibly tend to confuse. (The Circuit decree ought to appear in the report of the case.)
First. The plaintiff’s abstract of title, as claimed, is very simple, as follows: (1) Both parties claim through a common
But the defendant makes vigorous defence, alleging irregularities and illegality in the tax proceedings, and the purchase and acceptance of title thereunder by the plaintiff. In his answer, among other things, the defendant states as follows : “Defendant admits that he claims the land described in the complaint through one Wade H. Gowan, said title being derived from a sale of said lands under an order of this court for the foreclosure of a mortgage over said land, in a proceeding instituted in this court by the plaintiff as attorney for the said Wade H. Gowan; that said mortgage is an older and prior lien on said land than the lien through which plaintiff claims title to said land. That pending proceedings for the foreclosure of said mortgage, as hereinbefore stated, the said land was levied upon by the sheriff of this county, advertised and sold for taxes, and the same bid off by the plaintiff, who was at the same time the agent for the said Gowan, and if the plaintiff has any valid deed to said land, he holds the same as agent of the said Gowan. That when the plaintiff bid off said land, he did so with full knowledge of the rights and equities of the defendant. Defendant further says that the deed through which the plaintiff claims said laud is defective and void, on account of the non-compliance with the laws of this State. But that, notwithstanding this fact, as well as the others heretofore stated, defendant wishing to avoid the expense of a lawsuit,
The cause was referred to the master to hear and determine all issues, and report his conclusions to the court, with leave to any party to except thereto. Accordingly the master took the testimony, including the whole record in the foreclosure proceedings in the case of Cantrell vs. Gowan, as well as the tax execution, and the sheriff’s return of nulla tona as to personalty, and his advertisement of the sale and conveyance under it. After stating the important facts in the case, which appear in his report, he held “that the plaintiff was entitled to recover possession of the land in' dispute, together with two hundred dollars damages. The case seems to be a hard one, but the defendant had his remedy in buying the property at the tax sale, or in paying the taxes before sale,” &c. Upon exceptions to this report, the cause came on for trial before his honor, Judge Izlar, who, concurring in all the facts found by the master, and in his law except upon one point, pronounced judgment that the exceptions of the defendant be overruled, and that the report as modified be confirmed, and thus modified stand as the judgment of the court, &c. From this judgment the defendant appeals to this court upon numerous exceptions, which are all printed in the Brief (thirty in number); but as some of them are long, and state the same matter in different forms, we think that the points made may be more satisfactorily considered by condensing them into the following propositions in their natural order:
It is very true, that the relation of attorney and client is a responsible and delicate one, and the books of reports are full
It is true, the act of 1887 (19 Stat., 884), so often herein referred to, authorizes “the sheriff of the county to 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 after due advertisement to sell the same, &c. * * * And after deducting from the proceeds of sale the amount of taxes and charges, to pay the excess, if any there be, to the defaulting tax-payer,” &e. It is very obvious that the main object of this act was to collect, at all events, the taxes due the State. But we do not understand that in doing so, it was intended to limit the sheriff, on pain of destroying his own deed, to buying and selling only “so much” of the land as would produce the precise sum necessary to pay the taxes; for the act expressly provides, that “if there is any excess, it shall be paid over to the defaulting tax-payer.” This certainly contemplated the possibility of an excess. Of course, a sacrifice of property is always to be
The case is in several respects a novel one, and involves an unusual number of points. The court has endeavored to consider all the important questions made, and feel excused, for saying, that they have been greatly assisted by the learned arguments of the counsel on both sides.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.