Ex parte Cudd

• Decision Date: 01 March 1915
• Docket Number: 9011.
• Parties: EX PARTE CUDD. WERTZ v. WERTZ ET AL.
• Court: South Carolina Supreme Court

84 S.E. 411

100 S.C. 110

EX PARTE CUDD. WERTZ v. WERTZ ET AL.

No. 9011.

Supreme Court of South Carolina

March 1, 1915

Appeal from Common Pleas Circuit Court of Spartanburg County; Geo E. Prince, Judge.

Partition by Margaret M. Wertz, as executrix, and in her own right against J. B. Wertz and others. From an order compelling R E. Cudd, purchaser, refusing to perform his purchase, to pay the loss sustained on a resale, he appeals. Affirmed.

The following is the order of Circuit Judge Prince:

The plaintiff and defendants were tenants in common of a lot of land on North Liberty street, in the city of Spartanburg. It was left to them by their father and grandfather, J. B Wertz, at the termination of a life estate given in the will of said J. B. Wertz to his wife, Maggie L. Wertz. This action was brought for the purpose of partition, and under a decree of the court the property was advertised and exposed for sale by the master on November 4, 1912. At that sale R. E. Cudd bid the property off for $7,600. He subsequently refused to comply, claiming that the property was eight feet less in depth than advertised and as stated by the master at the sale. The property was again advertised by the master at the risk of Cudd and sold on the 6th day of January, 1913, under the terms of the former decree for $7,051 and at an additional cost of $10.30. The master then petitioned this court for a rule to show cause against Cudd why he should not be required to pay into the master's hands $549 difference in the price and $10.30 additional cost, with interest on same from January 6, 1913, and interest on $7,600 from November 4, 1912, to January 6, 1913. Mr. Cudd made return that, when he was bidding on the property in November, he asked the master if he was selling 143 feet, and that rough plat exhibited at said sale represented that the lot was 143 feet deep; that he subsequently ascertained that the original plat which had been made by Stribling, surveyor, had been misplaced at the sale, and that said plat showed by a dotted line across the front end of said lot that 8 feet had been cut off next to the sidewalk for the purpose of widening the street; that he understood that he was buying 143 feet back or west of said line, and as a matter of fact there was only 135 feet back of said line. At the hearing before me the master testified orally that he did state to Mr. Cudd that he was selling 143 feet, and he also stated...