Antrum v. Hartsville Production Credit Ass'n, 17069

• Decision Date: 04 October 1955
• Docket Number: No. 17069,17069
• Court: South Carolina Supreme Court
• Parties: Lide ANTRUM, Appellant, v. HARTSVILLE PRODUCTION CREDIT ASSOCIATION et al., Respondents.

Page 376

89 S.E.2d 376

228 S.C. 201

Lide ANTRUM, Appellant, v. HARTSVILLE PRODUCTION CREDIT ASSOCIATION et al., Respondents.

No. 17069.

Supreme Court of South Carolina.

Oct. 4, 1955.

H. F. Bell, Chesterfield, Benny R. Greer, Darlington, for appellant.

Melvin Hyman, Darlington, John F. Wilmeth, Robert W. Shand, Philip Wilmeth, Hartsville, for respondents.

LEGGE, Justice.

On May 23, 1949, Hartsville Production Credit Association commenced in the Court of Common Pleas for Darlington County an action to foreclose a mortgage of certain real estate in that county executed by Lide Antrum under date March 6, 1947. The mortgage under foreclosure recited that it was given to secure two certain promissory notes of the mortgagor, payable to the order of the Credit Association, one dated March 6, 1947, in the amount of six hundred ($600.00) dollars, and the other for nine hundred ($900.00) dollars dated November 13, 1946, the last mentioned note being also secured by a chattel mortgage; and the complaint alleged default in respect of both notes, and an unpaid principal balance of thirteen hundred ($1,300.00) dollars. The Federal Land Bank of Columbia and the Land Bank Commissioner were named as parties defendant by virtue of senior mortgages held by them, but they were not served with process. The defendant Antrum having been adjudged in default, the cause was by order of the Honorable J. Woodrow Lewis, Judge of the Fourth Judicial Circuit, dated June 13, 1949, referred to the Master for Darlington County, who on the same day held a reference and reported, finding that the total amount secured by the mortgage, including interest to September 3, 1949, and attorney's fee, was one thousand four hundred seventy-four and 68/100 ($1,474.68) dollars, and recommending sale of the mortgaged premises, subject to the liens of the senior mortgages before mentioned. On the same day, June 13, 1949, Judge Lewis issued a decree of foreclosure in usual form, confirming the Master's Report and ordering that the mortgaged premises be sold by the Master, after due advertisement, on sales day in October, 1949, or on some convenient sales day thereafter.

The sale was held on sales day in December, 1949, and the property was first knocked down to the defendant Lide Antrum, who was highest bidder at two thousand six hundred fifty ($2,650.00) dollars; but, as he was without cash sufficient to meet the required deposit, the bidding was reopened shortly thereafter and the property then knocked down to Marion D. Hawkins, who was the highest bidder at two thousand nine hundred ($2,900.00) dollars. Mr. Hawkins having complied with his bid, the property was conveyed to him by the Master by deed dated December 6, 1949. The surplus proceeds of the sale, after payment of the mortgage debt and costs, amounted to nine hundred seventy and 07/100 ($970.07) dollars. Antrum refused to accept this money, and it was retained in the custody of the Master until July 31, 1954, when it was paid to Antrum pursuant to a court order to which we shall later refer.

Antrum having refused to relinquish the property to the purchaser, and an affidavit to that effect having been submitted to the court, Judge Lewis issued, on December 30, 1949, an order requiring him to show cause on January 7, 1950, why a writ of assistance should not be issued directing the sheriff of Darlington County to remove him from the premises and to put the purchaser into possession. To this rule, by counsel not now representing him, he made return, setting forth:

'1. That the real property referred to and described in said rule to show cause was sold at public auction on the 5th day of December, 1949, and at said sale the defendant, being the highest bidder, purchased said property.

'2. That the pertinent facts, as to which defendant desires to present testimony by way of return to said order, are as follows: That after the official conducting the sale announced that defendant was the purchaser of said property, said official called upon defendant to deposit with him 5% of the bid as required by the decree of this Court ordering the sale of said property; that defendant did not have sufficient funds on his person to make said deposit; that the official conducting the sale told defendant that he would allow defendant to get the money and to hurry back; that defendant did obtain the amount of money required by said decree as deposit, and returned to the scene of the sale within twenty-five (25) minutes after he was told to get the money. Upon his return, defendant was informed that the property had already been sold'.

Judge Lewis held the return insufficient, and by his order dated January 7, 1950, directed the Clerk to issue the writ, which was done on January 9, 1950; and presumably the writ was executed in due course and the purchaser, Marion D. Hawkins, entered into possession. From Judge Lewis' order of January 7, 1950, no appeal was taken.

On December 23, 1953, Lide Antrum filed in the foreclosure proceeding a petition, naming as respondents Hartsville Production Credit Association and the heirs of Marion D. Hawkins, then deceased, and praying that the foreclosure sale of December 5, 1949, be set aside and that the deed from the Master to Marion D. Hawkins be declared void and be cancelled of record, for the following reasons:

1. The selling price, $2,900.00 was grossly inadequate;

2. The persons operating the sale had lulled the petitioner, who was an uneducated man, into a false sense of security by telling him that they would give him a reasonable time within which to obtain the required cash deposit, thereby inducing him to leave the place of sale, whereupon the property was immediately sold to another;

3. By such action, the persons operating the sale had chilled the bidding;

4. The persons operating the sale had refused his 'legal tender' of the required deposit, said tender having been made partly in cash and partly in the form of a postal money order;

5. The chattel mortgage should have been foreclosed before resort was had to the real estate mortgage;

6. The real estate mortgage had been obtained by fraud, forgery and deceit;

7. The fact that in the foreclosure proceeding the filing of the affidavit of default, the issuance of the order of reference, the reference itself, the issuance of the Master's Report, and the issuance of the decree all took place one day after the petitioner's default, is indicative of fraud;

8. In the Master's Report and the decree, both dated June 13, 1949, interest on the mortgage indebtedness was ordered paid to September 3, 1949, which effected, to the extent of interest allowed after June 13, 1949, a taking of petitioner's property without due process of law;

9. In the complaint in the foreclosure proceeding the amount secured was alleged to be $1,500.00 although the mortgage recited that it was given to secure advances aggregating $600.00.

To this petition the heirs of Marion D. Hawkins made return, alleging, among other things:

1. That the foreclosure sale had been delayed for more than an...