Fairey v. Kennedy

Decision Date21 March 1904
PartiesFAIREY et al. v. KENNEDY et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Barnwell County; J. E McDonald, Special Judge.

Action by Julia L. Fairey and others against W. H. Kennedy and others. From the decree, defendants W. H. Kennedy and A. M Kennedy appeal. Affirmed.

J. O Patterson and Allen J. Green, for appellants. B. T. Rice, for respondents.

WOODS J.

A synopsis of the pleadings is necessary to a clear understanding of the issues involved in this cause. The following are substantially the allegations of the complaint Mrs. Elizabeth Wade executed a mortgage to the defendant W. H. Kennedy in 1886, and died intestate in 1896, leaving her husband and a number of children as her heirs. The husband afterwards died, leaving the children as his heirs. Two daughters, Mrs. McCurley and Mrs. Nipson, died intestate after their mother, the first leaving as her heirs her husband and one minor child, and the second her husband and two minor children. Kennedy, the mortgagee, recovered a judgment of foreclosure in 1897 in an action to which all who claimed an interest in the land through Elizabeth Wade were parties. The master sold under this judgment, and "W. H. Kennedy became the purchaser thereof by and through his son and partner in business, A. M. Kennedy, one of the defendants herein." Before the sale was made, W. H. Kennedy agreed with W. D. Wade, a son of Mrs. Wade, and F. A. Fairey, husband of one of her daughters, acting for all the heirs of Mrs. Wade, that he would bid off the land, and allow the heirs two years to redeem it by paying the judgment and $200 owing to W. H. Kennedy by W. D. Wade individually. Fairey and W. D. Wade were to hold and cultivate the land and apply the profits to the debts. In pursuance of this agreement, W. H. Kennedy, through A. M. Kennedy, bought the land for $1,210, and W. D. Wade alone, with Fairey's consent, went into possession, and made payments to W. H. Kennedy on the indebtedness. The other parties for whose benefit the agreement was made also made payments. After receiving these payments, W. H. Kennedy violated and renounced the agreement, concluded with W. D. Wade to exclude all the other heirs from participation in the benefits to be derived from the redemption of the property, and W. D. Wade is now in possession of the land under some separate agreement to purchase. The property mentioned "is worth $3,000 or more, and in consequence of said agreement entered into between the said W. H. Kennedy and the heirs at law of Mrs. Elizabeth Wade the same was sold at a great sacrifice, as it was understood at said sale that said land was to be bid off for the benefit of the said heirs at law, and the bidding was chilled by reason of said agreement." The plaintiffs allege their readiness and desire to carry out the terms of the contract made with Kennedy for the benefit of all the heirs, and demand judgment for an accounting for all rents and other payments made by W. D. Wade and the other heirs; that plaintiff be allowed to pay the indebtedness remaining due under the contract, and that upon such payment, W. H. and A. M. Kennedy be decreed to execute fee simple title to the heirs of Mrs. Wade. All who claim through Mrs. Wade are parties plaintiff or defendant. The infant defendants, in their answer, join in the prayer of the complaint. W. D. Wade and C. L. Wade, in their answers, allege that the land brought a fair price at the master's sale, and deny that the bidding was chilled. They deny that any contract was made with W. H. Kennedy before the master's sale for the redemption of the land, and allege that after the sale W. D. Wade made a contract of purchase with A. M. Kennedy, which was to be for the benefit of all the Wade heirs; that he paid about $400 on this contract, a part of which came from some of the other heirs; that he has not been able to pay the remainder of the purchase money, and the heirs have not come to his assistance. They ask for an accounting by A. M. Kennedy of the sums received, and that he be required to execute a deed to W. D. Wade and such other of the Wade heirs as shall come in and contribute their portion of the purchase money. W. H. Kennedy, in his answer, denies that he made the contract set up in the complaint, or that A. M. Kennedy purchased the land for him, or that he has any interest in it, or that he has received money from any of the Wade heirs on a contract of purchase. The answer of A. M. Kennedy sets up an independent purchase by him of the land at the master's sale, and contains an allegation that he has no knowledge or information sufficient to form a belief as to the alleged contract with W. H. Kennedy. Both the Kennedys allege the land was bought for a fair price at a fair sale, without any chilling of the bidding.

Upon the call of the case for trial, the defendants interposed the following demurrer: "The defendants now move to dismiss the complaint herein on the ground that the case does not state facts sufficient to constitute a cause of action, in this: (1) That it appears from the face of the complaint that the agreement or contract sought to be enforced and set up in the complaint by the plaintiff is one that contravenes established principles of public policy, in that it tends to prevent and did prevent full and free competition at the judicial sale, as alleged in the complaint, and hence is alleged illegal and void, and cannot be enforced in a court of justice; and (2) it also appears from the complaint that the plaintiffs are in pari delicto with the defendants, and the court will not lend its aid to either party, but will leave them where it found them." The circuit judge overruled the demurrer. W. H. Kennedy and A. M. Kennedy are the only appellants, and their first and second exceptions involve the correctness of this ruling.

The demurrer is based on the proposition that an agreement...

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