Bank Of Charleston Nat. Banking Ass'n v. Dowling

CourtUnited States State Supreme Court of South Carolina
Citation45 S.C. 677,23 S.E. 982
PartiesBANK OF CHARLESTON NAT. BANKING ASS'N v. DOWLING et al.
Decision Date06 March 1896

Ejectment — Title to Support — Purchaser at Sheriff's Sale—Pleading—Equity,

1. A purchaser of land at sheriff's sale cannot sue for possession of the land before delivery of the sheriff's deed thereto.

2. A creditor who had purchased land of his debtor at a sheriff's sale, but who had not obtained a sheriff's deed thereto, sued to recover possession of the land for the benefit of himself and other creditors, and also alleged that certain previous conveyances by the debtor, who was alleged to have been insolvent, were in fraud of creditors, and demanded that they be set aside, and the land sold for the benefit of the creditors, etc.Held that, though the action could not be maintained for the recovery of the possession, yet the complaint should not be dismissed without passing upon the equitable issues.

Appeal from common pleas circuit court of Barnwell county; I. D. Witherspoon, Judge.

Action by the Bank of Charleston National Banking Association against J. C. Dowling and others. From a judgment dismissing the complaint, plaintiff appeals. Modified.

R. A. Ellis and S. G. Mayfield, for appellant.

Bates & Simms and Henderson Bros., for appellees.

GARY, J. The allegations of the complaint are substantially as follows: (1) The corporate existence of the Bank of Charleston National Banking Association. (2) That on the 24th day of November, 1874, the defendant E. H. Dowling, in consideration of $16,000. paid by J. C. and C. T. Dowling, made and delivered to the said J. C. Dowling and C. T Dowling a deed of conveyance to the land described in the complaint. (3) That on the 13th March, 1875, J. C and C. T. Dowling executed and delivered to E. H. Dowling their mortgage to secure the payment of the balance of the purchase money on said land, conditioned for the payment of $16,000. (4) That J. C. and C. T. Dowling forthwith entered into possession of the said lands, and con tinued in possession thereof until December, 1877. (5) That in December, 1877, the defendants J. C. and C. T. Dowling abandoned possession of the said lands, and voluntarily surrendered possession thereof to the defendant E. H. Dowling, who forthwith entered into possession thereof, and had continued in possession thereof till the present time. (6)

That on the ——day of ——, 1888, Mrs.

Virginia Spann Dowling, the wife of the defendant E. H. Dowling, departed this life, leaving of full force her last will and testament, wherein she left her entire real and personal property to "be, during the life and capacity of the said E. H. Dowling, managed, controlled, exchanged, sold, or otherwise disposed of at and by the discretion of the said Elijah H. Dowling, and without accountability therefor, and in accordance with any testamentary directions of the said Elijah H. Dowling, " etc. (7) That the said Mrs. Virginia Spann Dowling left, surviving her, three children, the defendants Henry Spann Dowling, Decania Dowling, and Lina E. Dowling; and said defendants are now infants, above the age of 14 years, and under 21 years; and said children of Mrs. Virginia Spann Dowling are made parties hereto, that their rights may be adjudicated. (8) That Elijah H. Dowling was named as executor of said will, and duly qualified as executor thereof. (9) That Mrs. Virginia Spann Dowling, at the time of her marriage with the defendant Elijah H. Dowling, had very little property, real or personal, and to the time of her death had not engaged in any business or acquired any property whatsoever, by gift, devise, or inheritance, except from her husband, the defendant E. H. Dowling. (10) That on the 29th day of December, 1876, the defendants J. C. Dowling and E. H. Dowling became indebted to this plaintiff in the sum of $1,021.44, and same indebtedness has been reduced to judgment by an order of this court, on February 28, 1878, for $1,447.67. and $26.85 costs, etc. (11) That on the 28th day of February, 1878, judgment was duly given in favor of plaintiff in the above case, in the court of common pleas, in county and state aforesaid, against defendants, for the sum of $1,147.07 and $26.85 and disbursements; and said judgment was renewed according to law on December 1, 1893, with all the force and effect of the former recovery. (12) That on the 7th day of December, 1893, said judgment was duly recorded in the judgment book in said office, and said judgment is now a lien on all the real property of the defendants J. C. and E. H. Dowling. (13) That execution was issued ti_ enforce payment of

said judgment. (14) That on the——day of

January, 1894, under said execution, J.W Lancaster, sheriff of Barnwell county, levied upon 1, 800 acres of land (set forth in Exhibit B), as the property of J. C. and E. H. Dowling, and, after duly advertising the same, offered said lands and tenements for sale at Barnwell courthouse, on February 5, 1894, to the highest bidder for cash; and said landsand tenements were sold to this plaintiff for the sum of $100, it being the highest bidder therefor, and plaintiff now holds said lands for the benefit of itself and all other creditor's of J. C. and E. H. Dowling. (15) That at the time of said sale, and before the purchase of said lands and tenements by the plaintiff, the defendant E. H. Dowling announced "that the purchaser would get no title, for this reason: First. That E. H. Dowling had by deed conveyed said lands to J. C. Dowling and C. T. Dowling. Second. That J. C. Dowling and C. T. Dowling had executed a mortgage over the property for the purchase of said lands, and E. H. Dowling had assigned the mortgage to Mrs. Rebecca Barr, to secure her against loss on a judgment against him for $7,204; that subsequently said judgment debt to his sister was paid in full, and said E. H. Dowling transferred said mortgage to his wife, Mrs. Virginia Spann Dowling. Third. That, subsequent to said assignment, the defendant J. C. Dowling, by deed, conveyed all of his interest in said lands to said Mrs. Virginia Spann Dowling, and that C. T. Dowling's interest was covered by the said mortgage. Fourth. That a homestead had...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT