Dibble v. Schade, 1807
| Decision Date | 17 March 1992 |
| Docket Number | No. 1807,1807 |
| Citation | 308 S.C. 88,417 S.E.2d 104 |
| Parties | W.W. DIBBLE, Appellant, v. David R. SCHADE, Defendant; and VICTORY SAVINGS BANK, Respondent, v. David R. SCHADE, Charleston Lumber Co., Inc., and W.W. Dibble, of whom W.W. Dibble, is, Appellant. . Heard |
| Court | South Carolina Court of Appeals |
W.W. Dibble, pro se.
Charles E. Carpenter, Jr., Deborah L. Harrison and Frederick A. Crawford, all of Richardson, Plowden, Grier & Howser, Columbia, for respondent.
This appeal involves a dispute between a tax sale purchaser and the holder of a mortgage. The property was an office condominium. An action to clear title and a foreclosure action involving the condominium were consolidated for trial. The master granted a nonsuit to Victory Savings Bank in the action to clear title and granted judgment for Victory Savings Bank in the foreclosure action. W.W. Dibble, the tax sale purchaser, appeals. We affirm.
On May 17, 1988, David Schade executed a commercial note payable to Victory Savings Bank. To secure the note, Schade also executed a mortgage on an office condominium. Schade filed for Chapter 11 bankruptcy in February 1989. Victory Savings filed its proof of claim on April 20, 1989, in the bankruptcy proceeding. Schade was a debtor in possession. He defaulted on the note in June 1989. The bankruptcy action was converted to Chapter 7 on September 19, 1989. On December 4, 1989, the bankruptcy court released the property from the automatic stay on motion of Victory Savings.
In the interim, the property was sold for nonpayment of taxes at a Richland County tax sale on September 5, 1989. W.W. Dibble purchased the property by payment of delinquent taxes. On October 27, 1989, Dibble filed a notice of lis pendens and subsequently filed an action on December 15, 1989, to clear title to the property. The only defendant named by Dibble in his suit was David Schade.
According to the Statement of the Case, Schade phoned Dibble on December 20, 1989, and inquired about the purpose of the complaint. Dibble informed Schade the property had been sold for delinquent taxes "with a bill of sale as title being held by [him] and this was a suit to clear tax title." On the same day, Dibble received a call from the attorney for Victory Savings also inquiring about the suit. The attorney requested a copy of the complaint which Dibble mailed to her.
According to the sequence of events, Victory Savings paid the taxes and a redemption fee on the property on January 19, 1990. Victory Savings commenced a foreclosure action on January 22, 1990. Schade and Dibble were named as defendants. Dibble answered the action.
As to Dibble's prior action to clear title, an order was filed on May 8, 1990, which declared Schade in default and stated Dibble owned the property in "fee simple free and clear of all right, title, interest or claim of [Schade]." Judgment was entered on this order. Meanwhile, Victory Savings had filed a motion for an order of reference in the foreclosure action. The foreclosure action was referred to the master on May 21, 1990. Victory Savings also filed a motion to intervene in the clear title action on May 24, 1990. By order of June 4, 1990, the circuit court held the previous order in the clear title action had been signed by the court through error because Dibble had failed to name and notice all interested parties (i.e. Victory Savings Bank). Therefore, the circuit court sua sponte voided the judgment and restored the case to the active roster. The court referred both the clear title action and the foreclosure action to the master with finality and direct appeal to the Supreme Court.
At the consolidated hearing, the master granted a motion for nonsuit in favor of Victory Savings Bank in the clear title action. The master also granted a judgment of foreclosure for Victory Savings. Dibble's primary substantive argument is the master erred in concluding Victory Savings Bank had a right of redemption because the condominium was personal property and not real property.
A mortgage creditor is given a twelve month right of redemption of real estate from the date of the delinquent tax sale. S.C.Code Ann. Section 12-51-90 (Supp.1991). If the real estate is redeemed, the purchaser at the tax sale is entitled to reimbursement of the purchase price along with interest. S.C.Code Ann. Section 12-51-100 (Supp.1991). A purchaser of real property at a tax sale receives a tax title only after the period of redemption has passed without action to redeem. S.C.Code Ann. Section 12-51-130 (Supp.1991). However, personal property has no redemption period subsequent to the time the property is "struck off to the successful purchaser at the delinquent tax sale." S.C.Code Ann. Section 12-51-110 (Supp.1991).
The record establishes the condominium is Unit 3-B in the Jefferson Executive Center Horizontal Property Regime. The mortgage refers to the master deed of the regime and describes the property as the unit together with the proportionate undivided interest appurtenant thereto in the common elements and a specific parking space in the adjoining lot.
Under the laws dealing with assessment of property taxes, the term "real property" is defined as "not only land, city, town and village lots but also structures and other things therein contained or annexed or attached thereto which pass to the vendee by the conveyance of the land or lot." S.C.Code Ann. Section 12-37-10(1) (1976). The term "personal property" is defined as "all things, other than real estate, which have any pecuniary value, and moneys, credits, investments in bonds, stocks, joint-stock companies or otherwise." S.C.Code Ann. Section 12-37-10(2) (1976). The Horizontal Property Act defines "condominium ownership" as "the individual ownership of a particular apartment in a building and the common right to a share, with other co-owners, in the general and limited common elements of the property." S.C.Code Ann. Section 27-31-20(c) (Rev.1991). Further, the Act provides "taxes ... shall be assessed against and collected on each individual apartment, each of which shall be carried on the tax books as a separate and distinct entity for that purpose...." S.C.Code Ann. Section 27-31-270 (Rev.1991). Given these definitions, we agree the condominium unit was real property as opposed to personal property for tax purposes and Victory Savings Bank had a statutory right of redemption which...
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