Dempsey v. Huskey, 16830
| Decision Date | 08 February 1954 |
| Docket Number | No. 16830,16830 |
| Citation | 80 S.E.2d 119,224 S.C. 536 |
| Court | South Carolina Supreme Court |
| Parties | DEMPSEY v. HUSKEY et al. |
The Order of Judge Littlejohn follows:
This matter came to be heard before me at Chambers at Spartanburg on Tuesday, January 13, 1953, as a result of exceptions filed by the plaintiff to the report of the special referee, and as a result of exceptions filed by the defendants Martha S. Huskey and Cecil G. Huskey, grounds for which exceptions will appear more fully by reference to the instruments filed by counsel in the case, both of which are of record.
A summary of the testimony in this case reveals that the plaintiff, Bertha Dempsey, on November 8, 1947, agreed to purchase a house and lot from Martha S. Huskey, the transaction being handled by her husband, Cecil G. Huskey, for the purchase price of $5,350, and that $1,000 was paid and receipted for on that day. On November 27, 1947, she paid an additional $1,000 and received a receipt therefor. The plaintiff came to occupy the house for approximately three months without further payment and without a deed being executed. There was no formal contract of purchase and sale, and the testimony relative to the time of compliance, etc., is in conflict.
In February, 1948, the plaintiff advised the defendant Cecil G. Huskey of the fact that she was moving to Florida, and Huskey advised her that he could sell the property to some one else and give her her money back within five days. The plaintiff vacated the property and very soon thereafter the defendant Cecil G. Huskey went to Washington and stayed 90 days without doing anything about the property. He returned and on or about June 1, 1948, sold the house and lot to the defendant Ned Shehan for the sum of $5,500 and executed a bond for title, the terms of which provided for $350 in cash and $50 per month for a period of five years at 6% interest. It was contemplated that at the end of five years the principal would have been reduced such that a conventional loan could be obtained, and such that the remaining portion of the purchase price could be paid by Shehan to the Huskeys. This transaction made by the Huskeys with Shehan was made without the knowledge or consent of the plaintiff.
Thereafter, in April of 1949, this action was commenced against Mrs. Martha S. Huskey and Ned Shehan for the purpose of having the Court adjudicate the rights of the parties. Later, Cecil G. Huskey was made a party defendant, and at the hearing before the special referee plaintiff amended her complaint so as to allege fraud on the part of Cecil G. Huskey, as will appear by reference to the amendment permitted and reported in the testimony. The prayer for relief accompanying and amendment is for judgment against defendants Cecil G. Huskey and Mrs. Martha S. Huskey in the amount of $2,150, with interest, and for such other and further relief as to the Court may seem necessary and proper.
There is testimony to the effect that while the plaintiff occupied the premises she spent approximately $150 for improvements and/or shrubbery and seed.
It has been agreed by counsel that it is to the best interest of all parties concerned that the sale to Shehan be carried out, and this Court has, on December 9, 1952, passed its order, consented to, permitting Shehan to pay to the Clerk of Court the sum of $3,000, and permitting the sale to be completed such that Shehan get good title from Martha S. Huskey, and such that the contest and the action continue over the funds.
The referee has recommended judgment in the amount of $2,000 in favor of the plaintiff, has denied plaintiff's claim for interest, has denied defendants' claim of a forfeiture, has assessed costs of the action against the defendants Martha S. Huskey and Cecil G. Huskey, and has recommended other relief incidental to the action.
The summary given hereinabove does not attempt to set forth all of the facts but reference is made to the whole of the testimony which has been studied in detail.
The defendants Martha S. Huskey and Cecil G. Huskey filed 14 exceptions to the referee's report, but basically raise only four issues. 1st, was the defendant Cecil G. Huskey guilty of legal civil fraud? 2nd, was the referee in error in basing his findings on personal observations, experiences, surmise and conjecture? 3rd, was the referee in error in failing to allow the defendants interest? 4th, was the referee in error in failing to hold that the plaintiff forfeited the $2,000?
The plaintiff files one exception in which she challenges the correctness of the referee in failing to allow the plaintiff interest on the $2,000 which she paid from the time of five days after defendants promise to sell the property in February, 1948.
Upon a review of the testimony and after hearing argument of counsel for both sides and studying the very able briefs which have been submitted, I find myself basically in accord with the findings and holdings and recommendations of the special referee with certain exceptions which will be hereinafter set forth. It is obvious that the referee has given considerable time and study to this case and I have a very high regard for the recommendations included in the report. At the same time a more substantial justice may be brought about in this case if it is approached and decided on a different basis. It would appear beyond dispute that in this State in a case of an agreement to buy and sell real estate, where the vendee defaults the vendor has a right to foreclose as in the case of a mortgage. The equitable title is in the vendee. The legal title is in the vendor. When such an action is brought to adjudicate the rights of the vendor and vendee the vendor corresponds to the mortgagee and the vendee corresponds to the mortgagor. The Court may sell the property and pay to the vendor the remaining amount of the purchase price, together with costs of the action, and interest in a proper case.
In this case in February 1948 at the time when the plaintiff advised the defendants of her plans to move to Florida, the vendor became vested with such a right to bring an action and to proceed as in a foreclosure. In lieu of such an action I find that the parties agreed that Cecil G. Huskey should sell the property and...
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Simonds v. Simonds, 17370
...examination of the respondent and her witnesses as to the matters contained in the affidavits. In the recent case of Dempsey v. Huskey, 224 S.C. 536, 80 S.E.2d 119, 122, this Court adopted as its opinion the order issued on Circuit. This order shows that the plaintiff and the defendants att......
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Lewis v. Premium Inv. Corp.
...contract for the sale of land our Court has equated the vendor with the mortgagee and the vendee with the mortgagor. Dempsey v. Huskey, 224 S.C. 536, 80 S.E.2d 119 (1954).4 There is no equitable reason why the right of redemption should not likewise be afforded to vendees in an installment ......
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In re Kingsmore, C/A 02-04789-W.
...cases could be construed to suggest that a purchaser under an installment land contract has an equitable ownership in the property. In Dempsey v. Huskey, the Supreme Court of South Carolina noted that, in the context of an installment land contract, the purchaser has "equitable title" to th......
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Lewis v. Premium Investment Corp.
...was entitled to tender the balance due with interest and enforce the contract prior to a judicial determination. In Dempsey v. Huskey, 224 S.C. 536, 80 S.E.2d 119 (1954), our supreme court recognized the general principle that an equitable interest arises in a vendee under a contract for th......