Fischer v. Bennett

• Decision Date: 24 May 1943
• Docket Number: 15544.
• Parties: FISCHER et al. v. BENNETT et al.
• Court: South Carolina Supreme Court

25 S.E.2d 746

202 S.C. 534

FISCHER et al. v. BENNETT et al.

No. 15544.

Supreme Court of South Carolina

May 24, 1943

M W. Seabrook, of Sumter, for appellant.

N N. Newell, of Monck's Corner, and William M. Wilson and Alva C. DePass, both of Columbia, for respondents.

FISHBURNE Justice.

This controversy has to do with the validity of a sheriff's sale to enforce the lien for delinquent taxes. The property consisting of 21.9 acres, was sold by the sheriff of Berkeley County on April 3, 1939, under tax executions for the years 1931-1937, both inclusive, to M. B. Cross, the appellant, for $73.85. This amount was paid by him to the county treasurer later he paid to the county treasurer $7.84, being the amount of taxes levied on the property for the year 1938.

Edward Bennett was the owner of the land in question. He died about twenty-five years ago, and at the time of his death resided on Johns Island, in Charleston County. Following his death, the property was listed and assessed on the tax books for Berkeley County during the years referred to in the name of the estate of Eddie Bennett; the tax executions were issued against that estate, and whatever levy was made was against the estate of Eddie Bennett.

The South Carolina Public Service Authority, wishing to acquire the land, on September 6, 1939, within the redemption period, commenced condemnation proceedings, to which Mr. Cross and the heirs at law of Eddie Bennett were made parties. A hearing was held before the Board of Referees on December 11, 1939, and the Board awarded the sum of $650 for the land. At this hearing, the appellant presented an affidavit setting forth his claim in the sum of $81.69, this being the aggregate of the amount paid out by him at the tax sale and the amount paid for the 1938 taxes.

In accordance with law (Sec. 9110, 1942 Code), the Public Service Authority delivered to the Clerk of Court of Berkeley County checks covering the award and the taxes. Thereafter, on April 22, 1940, a jury in the Court of Common Pleas returned a verdict in the sum of $550, as compensation for the land. On the anniversary date of the tax sale, April 3, 1940, the appellant demanded of the sheriff the execution and delivery to him of a deed to the property. This the sheriff refused to do.

The Public Service Authority has entered into possession of the land, and is not concerned in this litigation. The contest here is between Mr. Cross and the heirs of Edward Bennett, deceased, with reference to who is entitled to the proceeds in the hands of the Clerk of the Court. The appellant contends that as the successful bidder at the tax sale, he is entitled to the entire amount of $550 awarded by the jury. The respondents contend that the sheriff's sale was invalid, on the ground that the property was improperly listed, assessed and levied upon in the name of the estate of Eddie Bennett, when in fact the estate of Eddie Bennett had never been administered upon.

The special referee, to whom the cause was referred, held the tax sale to be null and void, and upon appeal, the Circuit Court in a well considered decree confirmed the report of the referee.

The law provides (Sec. 2605, 1942 Code): "That all lands shall be listed and assessed as the property of the person or persons having the legal title to, and the right of possession of, the land at the time of listing and assessment, and in case of persons having possession of lands for life, in the name of the life tenant: provided, further, that in the case of estates administered, the property shall be listed and assessed as the property of 'the estate of' the person deceased ***."

It becomes vital, therefore, to determine whether the estate of Edward or Eddie Bennett was ever administered upon. The record carries a stipulation to the effect that the estate of the deceased was not administered in Berkeley County. Edward Bennett at the time of his death resided in Charleston County. Section 8968, 1942 Code, provides that in case any person dies intestate the judge of probate of the county where the will of such person, had he left a will, would have been proved, shall grant administration. And Section 8930 provides that wills shall be proved before the judge of probate of the county where the testator resided; or, he having no place of residence within the state, in the county where the greater part of his estate may be. It follows, therefore, that the probate court of Charleston County had jurisdiction, and its records should disclose if the estate of Edward Bennett had been administered. In the circuit decree we find the following finding of fact: "I have carefully reviewed the testimony, including that of Isabella Thompson, B. M. Thompson, Jr., Peter Bennett, and Laura Fishburne, and it seems very clear that there has been no administration anywhere ***. There are two estates of persons named Edward Bennett in the probate office of Charleston County, but the testimony makes it plain that neither of these related to the Edward Bennett in question."

The evidence produced before the referee and before the trial Judge is not included in the transcript of record. We must, therefore, assume that there was sufficient evidence to support such finding. And this being so the finding must be sustained. Thomas v. Seaboard Air Line R. Co., 157 S.C. 144, 154 S.E. 97.

But the appellant contends that even if the finding of fact of the referee, concurred in by the Circuit Court, be upheld, error has been committed as a matter of law, because administration may be presumed from lapse of time; and because the burden was upon the respondents to show "that there was no administration at any place or time of the estate of Edward Bennett."

In this case we find no room for the indulgence of...