Carolina Sav. Bank v. McMahon

• Decision Date: 30 September 1892
• Citation: 16 S.E. 31,37 S.C. 309
• Parties: CAROLINA SAV. BANK v. McMAHON et al.
• Court: South Carolina Supreme Court

16 S.E. 31

37 S.C. 309

CAROLINA SAV. BANK v. McMAHON et al.

Supreme Court of South Carolina

September 30, 1892

Appeal from common pleas circuit court of Charleston county; JAMES F. IZLAR, Judge.

Action by the Carolina Savings Bank against Ellen McMahon, as administratrix of the estate of John McMahon, deceased, and in her own right, Michael J. McMahon, and James F. Redding to foreclose a mortgage of certain land in the city of Charleston, known as "No. 324 King Street." A decree of foreclosure was entered, and a sale ordered to be made by G. H. Sass, Esq., master for Charleston county. A sale having been made pursuant to such decree, the master, on April 13, 1892, made the following special report: "To the honorable the presiding judge. I respectfully report that in accordance with the decree of the court filed in this case March 21, 1892, I offered the mortgaged premises therein described for sale at public auction, at the post office Charleston, on Tuesday, the 12th day of April, 1892, after due advertisement; and at such sale said premises were knocked down to Mr. H. A. Heiser, for the sum of fifty-one hundred and fifty-five dollars, he being at that price the highest bidder therefor. The purchaser has, however, declined to comply with his bid, alleging certain defects in the title to the said property, and I therefore respectfully report the matter to the court for its action in the premises. Respectfully submitted, G. H. SASS, Master. April 13th 1892." Thereupon the court ordered that H. A. Heiser show cause why he should not be ordered to complete his purchase. To this said Heiser made a return, stating that he had declined to comply with his bid, on the ground that the title was defective in certain particulars, and asking that the matter be referred to the master to inquire into and report on the objections raised. On the reference the master found that the title was good, and judgment that Heiser complete his purchase was entered. Said Heiser appeals. Affirmed.

The following is the master's report:

"This cause was referred to me by the Hon. J. B KERSHAW, by order dated April 14, 1892, to take testimony and to inquire into all the matters herein involved, and to report my conclusions of all matters of fact and law in the case, together with the testimony therein taken.

I respectfully report that I have held references in the case; been attended by the solicitors of the parties; and have taken the testimony submitted, which is hereto attached and made a part of this report; and that, after hearing argument of counsel, I find first, as matters of fact; That one Joseph Johnson, on August 15, 1839, by deed duly recorded, conveyed to Patrick McBride the fee to the premises described in the complaint, the subject-matter of this action. This fee was held and owned by Patrick McBride until levied upon and sold under the judgment and execution in the case of the president and directors of the Bank of the State of South Carolina against McBride, Hanckel & Co. in 1847, as per evidence attached, of which defendant firm Patrick McBride was a member. In this case there were judgment execution, and levy, and sale thereunder, of the property in question. At such sale William B. Smith became the purchaser of the said premises, and the sheriff of Charleston county made a deed of the same to him on May 2, 1848, which was duly recorded. A copy of said deed in evidence contains the usual formal recitals, but through a clerical error omits the word 'heirs' in the habendum clause of the deed. It does, however, contain the words 'conveying all the estate, title, and interest which the said Patrick McBride one of the firm of McBride, Hanckel & Co., of right had in and to the same.'

William B. Smith thereupon took possession of said property, and held the same, claiming title adverse against the world, continuously and exclusively, until his conveyance of it to Robert White, September 14, 1852, when the said Robert White entered into and took absolute possession of the same. Patrick McBride, on November 21, 1845, mortgaged the premises purchased by Mr. Smith at this sheriff's sale to the said W. B. Smith for forty-five hundred dollars, ($4,500.) This mortgage was satisfied by W. B. Smith on September 14, 1852, the date of his conveyance to Robert White. No more money was paid for said satisfaction, but it was made at the request of Robert White. The conclusion is irresistible that William B. Smith purchased at sheriff's sale the premises in question to protect his loan of forty-five hundred dollars previously made by W. B. Smith, and secured by the said mortgage of Patrick McBride to him, with dower renounced thereon and duly recorded. As stated, W. B. Smith, on September 14, 1852, by deed duly recorded, conveyed the premises to Robert White. On the same day Robert White gave a purchase money bond and mortgage, which mortgage was duly recorded, for the sum of five thousand dollars, and the mortgage from Robert White to W. B. Smith was duly satisfied February 11, 1862. Robert White held possession of the premises from 1852 to December 4, 1863, when he conveyed the same in fee to John McMahon, on which day John McMahon executed a purchase-money mortgage for the same, duly recorded, which was satisfied September 26, 1864. From then until the present time John McMahon and his heirs held this property, claiming the same adversely against the world. John McMahon died in 1889. His wife, Ellen McMahon, has administered upon his estate. Before the death of John McMahon he mortgaged the premises to Carolina Savings Bank and James F. Redding. The Carolina Savings Bank brought suit for foreclosure September 15, 1890, and under those proceedings, concerning the validity of which no question is raised, the property was sold to Mr. H. A. Heiser at public outcry, after due advertisement, on April 12, 1892, for five thousand one hundred and fifty-five dollars, ($5,155,) he being at that price the highest bidder therefor. Mr. Heiser having refused to comply with his bid, on his return to rule served against him to show cause why he should not comply he sets forth certain objections to the title, which therein specifically appear. I find further, as matter of fact, that the proof to the probate of the deed from Robert White to John McMahon, dated December 4, 1863, is sworn to before John Phillips, a member at that time of the Charleston bar, who neglected to sign as a magistrate or notary public, but in the purchase-money mortgage given on the same date he signs his name to the probate of the same as a magistrate. It is admitted that the original deed from Robert White to John McMahon, with proper affidavits for re-recording under the law, was tendered Mr. H. A. Heiser before his rejection of the title to the property in dispute. Upon these findings of facts, I therefore hold, as matter of law, that the record of the deed of Robert White to John McMahon, dated December 4, 1863, the probate to which was certified to before John Phillips, who failed to sign as magistrate, is valid, it appearing from the purchase-money mortgage of even date therewith that the said John Phillips was a magistrate, ( Genobles v. West, 23 S.C. 155;) also that the continuous adverse possession by John McMahon and his heirs from 1863 to the present time is sufficient to have cured such defect as alleged, if any existed; also that the purchase-money mortgage given by John McMahon to Robt. White on December 4, 1863, duly recorded and satisfied, under the authority of Spears v. Oakes, 4 Rich. Law, 347, together with the other facts proved in the case, are conclusive evidence that Robert White conveyed to John McMahon.

The serious question presented is as to the effect of the error of the sheriff in omitting the word 'heirs' in his deed of May 2, 1848. This question has been elaborately argued, and received my careful consideration. Upon the points made in the argument, I hold: First. That the sheriff's deed to W. B. Smith, conveying all the right, title, and interest of Patrick McBride, which was a fee, shows the intention to convey the absolute estate or fee, and did in fact convey it. Brown v. Moore, 26 S.C. 161, 2 S.E. Rep. 9; Fuller v. Missroon, (S. C.) 14 S.E. Rep. 714. Second. That the sheriff's deed relates back to the judgment, or at least the levy, (Ex parte Mobley, 19 S.C. p. 341;) that, under judgment, execution, levy, and sale, all McBride's right, title, and interest, which was a fee, was sold to W. B. Smith; and that, even though said sheriff's deed may be defective, the possession of Smith and his grantees from May 2, 1848, to the present time, would be possession under color of title, and could be defended against the world. Third. Under judgment, execution, levy, and sale, the fee in McBride was sold. Even though the sheriff in his deed may have made a mistake, and failed to convey said fee, he or his successors can be made to correct it, and equity will consider that done which should have been done. Small v. Small, 16 S.C. 70. Fourth. Under section 109 of the Code, which was evidently passed for the purpose of quieting titles, I hold that possession by W. B. Smith and his grantees from May 2, 1848, to the present time, (a period of over forty years,) is valid against the world. These premises were sold at judicial sale. I

...