Alexander v. Messervet

• Decision Date: 09 March 1892
• Citation: 35 S.C. 409,14 S.E. 854
• Parties: Alexander v. Messervet.
• Court: South Carolina Supreme Court

14 S.E. 854

35 S.C. 409

Alexander

v.Messervet.

Supreme Court of South Carolina.

March 9, 1892.

Foreclosure Bale — Notice — Setting Aside— Inadequate Price.

1.Uader Gen. St. § 2424, providing that "all notices for the sale of any real estate under execution or order of court shall be advertised for 21 days prior to such sale; that is to say, once a week for at least three weeks prior thereto, "—21 days need not elapse between the first notice of a sale.under foreclosure and the sale, if in such time the notice has been published once a week for three weeks before the sale.

2. Section 2424 puts a sale of land by order of the court on the same footing as a sale under execution, so that a failure to comply strictly with the statutes regulating the time and mode of advertising such a sale is a mere irregularity, and does not vitiate the sale.

8. The appellate court will not interfere with a finding, from conflicting testimony, that plaintiff, in a proceeding to set aside a foreclosure sale, was not surprised, where such plaintiff had obtained the order for the sale.

4. In a proceeding to set aside a foreclosure sale the fact that the land brought a very inadequate price affords no ground of relief where there was no surprise.

Appeal from common pleas circuit court of Colleton county; James F. Izlar, Judge.

Action by John D. Alexander against P. H. Messervey to foreclose a mortgage. Judgmentfor plaintiff, and the mortgaged premises sold by a master. Petition by plaintiff, praying that the sale be declared null and void; that the deed executed by the master to the purchaser be canceled; and that the purchaser be enjoined from entering on the land. From a judgment dismissing the petition, plaintiff appeals. Affirmed.

H. E. Young, Wm. J. Fishburne, and C. C. Tracy, for appellant.

J. C. De Treville and Howell, Murphy & Farrow, for respondent.

McIver, C. J. By virtue of a decree for the sale of the mortgaged premises obtained in the principal cause, the same, being a tract of land in the county of Colleton, were offered for sale by the master on the sale-day, in December, 1888, it being the third day of that month, and bid off by one Benjamin Sauls for the sum of $10, who, having complied with the terms of sale, received titles from the master. The master having made his report of the sale, the appellant filed exceptions thereto, and also his petition praying that the said sale be declared null and void, and that the deed executed by the master to the purchaser, Sauls, be delivered up to be canceled; that said Sauls be enjoined from entering upon and using said land; and for such other relief as may be appropriate. A copy of this order was, by the order of his honor, Judge Wallace, served upon the said Sauls, with leave to answer the same within 20 days, and in due time Sauls filed his answer, contesting the material allegations contained in the petition. The case was then referred to C. G. Henderson, master, to take the testimony and report the same to the court. The testimony having been taken and reported to the court, and an order having been granted substituting the name of J. C. De Treville, as executor of the will of the said Benjamin Sauls, who had in the mean time died, leaving his last will and testament, appointing the said J. C. De Treville executor of the same, the case was heard by his honor, Judge Izlar, who, saying that, "in my opinion, the proofs show that there was no surprise on the part of the petitioner, and that the advertisement was a substantial compliance with the law on the subject, " rendered judgment dismissing the petition, overruling the exceptions to the master's report of the sale, and confirming said report. From this judgment the petitioner appeals upon the several grounds set out in the record. These grounds substantially impute the following errors to the circuit judge in rendering his judgment: (1) That he erred in holding that the land was advertised in substantial compliance with the law; whereas he should have held that, the advertisement not having been published for the full period of 21 days, the sale was null and void, because made without legal authority. (2) That there was error in holding that there was no surprise on the part of the petitioner, the testimony showing the contrary; whereas, he should have held that, on account of the surprise and misapprehension on the part of the petitioner, as well as on account of the wholly inadequate price at which the property was bid off, the sale should be set aside.

Under the view which we take of this case, it will not be necessary to consider the question raised in the argument here, —whether, in a case like this, where the title has been executed, the petitioner could obtain the relief which he seeks by.this mode of proceeding, —because we think that the petitioner has failed to show that he is entitled to relief by any mode of proceeding. His claim is based upon two grounds: (1) that the sale was illegal and unauthorized, because made without giving the notice required by law; (2) that the sale thus made without due notice was a surprise to him, and he was therefore prevented from bidding to the full amount of his debt, as he intended to do, —an amount very much larger than that for which the property was bid off by the alleged purchaser. As to the first ground the facts are as follows: The order obtained in the original proceedings for foreclosure directed that the mortgaged premises "be sold by Benjamin Stokes, master, for said county, at Walterboro, in said county, at public auction, after duly advertising the time.terms, and place of such sale in one of the newspapers published in said county, as required and provided bylaw;'* and the notice was given "by posting a notice on the courthouse door, on the 12th day of November, 1888, and filing a copy of the same, on the same day, with the proprietor of the Colleton Press, for publication;" that the sale would be made on the sale-day in December, (the 3d,) 1888. This notice was published in three issues of the Colleton Press, a weekly newspaper published in the county of Colleton, to-wit, those of the 14th, 21st, and 28th of November, 188S; so that, while the notice on the court-house door was published for the full period of 21 days, the notice in the newspaper was published only 20 days before the sale. The question, therefore, is whether the notice, thus published, was given for the length of time required by law, or, if not, whether the sale is thereby vitiated. While for many years the time for which sheriffs were required to advertise sales made under execution was prescribed by statute, yet until latterly there was no such statutory provision in regard to sales made under the order of the court, and therefore the practice of the old court of equity was to prescribe in the order of...