Byars v. Cherokee County

• Decision Date: 30 January 1961
• Docket Number: No. 17740,17740
• Citation: 118 S.E.2d 324,237 S.C. 548
• Parties: W. F. BYARS, Respondent, v. CHEROKEE COUNTY, Appellant.
• Court: South Carolina Supreme Court

Page 324

118 S.E.2d 324

237 S.C. 548

W. F. BYARS, Respondent, v. CHEROKEE COUNTY, Appellant.

No. 17740.

Supreme Court of South Carolina.

Jan. 30, 1961.

Harry L. Cline, Gaffney, for appellant.

Wade S. Weatherford, Jr., Gaffney, for respondent.

MOSS, Justice.

In the Cherokee County Supply Act for the year 1945, approved March 14, 1945, 44 Stat. 745, there was appropriated the sum of $2,500 to build a potato curing house in Lower Morgan Township. The Act further provided that the amount appropriated for the construction of the potato curing house should be expended by the A. A. A. Committee for said County and such Committee was authorized to purchase or receive as a gift a site therefor; the title to said property to be taken in the name of Cherokee County. In the 1946 Supply Act for Cherokee County, approved March 15, 1946, 44 Stat. 1935, there was an additional appropriation of $672.52 to pay the balance due for the construction of such potato curing house.

It appears that pursuant to the foregoing authorization, a representative of the A. A. A. Committee of Cherokee County entered into negotiations with W. F. Byars, the respondent herein, for the purchase of a small tract of land containing .415 of an acre for the site of the potato curing house, and that an agreement was reached whereby the respondent executed and delivered to Cherokee County, the appellant herein, a deed for the small tract of land for a consideration of $50, which said deed was dated August 17, 1945, and duly recorded in the office of the Clerk of Court for Cherokee County in Deed Book 2-Q, at page 198. This deed, pursuant to an agreement, contained the following proviso:

'Provided that in case the said lot of land shall cease to be used by the County of Cherokee for curing house purposes that the said Forrest Byars shall have the right to repurchase the said lot of land and have same reconveyed to him upon the payment of the said purchase price of $50.00, Cherokee County to have the right to remove therefrom at that time, any improvements placed on the said land if desired.'

The record shows that the A. A. A. Committee of Cherokee County constructed upon this small lot of land a cement block potato curing house. This building was completed in November 1945. The cost of construction was paid by Cherokee County from the appropriation made in the 1945 and 1946 Supply Acts. It is undisputed that the said lot of land and the building erected thereon ceased to be used by the County of Cherokee for curing house purposes in the spring of 1947. The respondent testified that it was then that he asked the county to reconvey the property to him as was provided in this deed of conveyance to the county.

It further appears that at a regular meeting of the Supervisor and the County Board of Commissioners held on September 5, 1950, a resolution was passed directing the sale of the potato curing house at public auction at 11:00 o'clock A.M. September 16, 1950. Pursuant to such authorization there was placed in the Gaffney Ledger the following advertisement:

'For Sale--Potato house in Macedonia Community to highest bidder on September 16, at 11:00 A.M.'

It appears that at the appointed time the potato curing house was sold at public auction to one Claud Philips for the sum of $70. The sale was held in front of the potato curing house and the auction was conducted by the Clerk of the County Board of Commissioners of Cherokee County. The purchaser sold the potato curing house building to one Roy Byars and the respondent purchased the building from the said Roy Byars.

It further appears that at a meeting of the Supervisor and the County Board of Commissioners held on October 3, 1950, a resolution was unanimously adopted reciting that the appellant had purchased from the respondent, on August 17, 1945, the lot of land hereinbefore referred to, for the sum of $50, upon condition that should the county ever cease to use the same for potato curing house purposes, that it would reconvey the same to W. F. Byars for $50. The resolution further recited that the county had ceased to use the said lot for the purposes aforesaid and directed the County Supervisor and the Clerk of the Board to execute a deed conveying the said premises to the respondent, in compliance with the condition contained in said deed. Pursuant to, and in compliance with said resolution, the appellant did by deed dated October 3, 1950, and recorded in the office of the Clerk of Court for Cherokee County, in Deed Book 3-V, at page 466, reconvey the said small tract of land to the respondent, he having repaid the county $50, the original purchase price thereof.

The record shows that the respondent, from the time of the purchase of the potato curing house and the lot upon which it stood, used it continuously in his farming and orchard operations until October 9, 1957, at which time the State Highway Department condemned the said building and lot of land for highway purposes and made an award of $1,554 for the lot of land and building thereon. On October 29, 1957, the Comptroller General of South Carolina issued a check for the amount of the condemnation award payable jointly to the respondent and the appellant.

The respondent instituted this action against the appellant seeking to have the Court affirm his title to the potato curing house and the lot of land upon which it was located, and to adjudicate that he alone was entitled to the proceeds of the highway condemnation award. It is the position of the appellant that the County Board of Commissioners for Cherokee County had no authority to sell the potato curing house building or to execute a deed to the property in question, their acts in so doing being void and ultra vires. It is further asserted that the conduct of the respondent and the County Board of Commissioners constituted a fraud upon the taxpayers of Cherokee County.

The issues made by the pleadings were referred to the Honorable Leroy Moore, as Special Referee, to take the testimony and to report his conclusions of fact and law. After the trial of the case before the said Special Referee, he filed his report, recommending that the Court issue its order declaring that the respondent was the sole and absolute owner of the potato curing house and lot at the time of the condemnation thereof by the State Highway Department, and also finding that the respondent was entitled to the proceeds of the condemnation award. The appellant excepted to this report and the matter was heard before the Honorable Bruce Littlejohn, Resident Judge of the Seventh Circuit, who, by his decree, dated October 16, 1959, overruled all of the exceptions and affirmed the said report. This appeal followed.

The appellant alleges that the sale of the potato curing house by the County Board of Commissioners and the sale and reconveyance of the lot of land in question by the said Board was a fraud upon the taxpayers of Cherokee County. The appellant asserts that the respondent and the County Board of Commissioners knew, or should have known, that the said premises were to be included within the right of way of a new highway, and that by reason of such knowledge, the conveyance of the property to the respondent constituted a fraud. Fraud must be alleged before one can have the advantage of a defense based thereon. Marston v. Rivers et al., 138 S.C. 295, 136 S.E. 222. We will assume, for the purpose of this appeal, that the answer of the appellant sufficiently alleged fraud as a defense. However, fraud is never presumed and evidence of it must be clear, cogent and convincing. Blackmon v. United Ins. Co., 235 S.C. 335, 111 S.E.2d 552. We find nothing in the evidence in this case from which fraud on the part of the respondent or the County Board of Commissioners might reasonably be inferred. When the respondent conveyed to the appellant the tract of land here involved, it was provided in such conveyance that should the appellant cease to use the said land for curing house purposes, then the respondent would have the right to repurchase the said lot of land and have the same reconveyed to him upon the payment of the purchase price of $50. When the respondent obtained a reconveyance of the property in question, in accordance with the condition stated in his deed to the appellant, he was acting within his legal rights. When the County Board of Commissioners of Cherokee County reconveyed the property to the respondent, it was acting in accordance with the condition contained in the deed under which the county obtained title to the property in question. Where one acts within his legal rights, fraud will not be presumed or implied. Mishoe v. General Motors Acceptance Corporation, 234 S.C. 182, 107 S.E.2d 43.

What is the proper construction of the deed from the respondent to the appellant, which conveyed the lot in question with the condition therein as is hereinabove set forth? In construing a deed, it is elementary that the cardinal rule of construction is to ascertain and effectuate the intention of the parties, unless that intention contravenes some well-settled rule of law or public policy. Davis et al. v. Davis et al., 223 S.C. 182, 75 S.E.2d 46; Grainger et al. v. Hamilton et al., 228 S.C. 318, 90 S.E.2d 209.

The testimony shows that the respondent owned a farm in Cherokee County and a member of the A....