Gallishaw v. Jackson

• Decision Date: 12 November 1914
• Docket Number: 8979.
• Citation: 83 S.E. 454,99 S.C. 342
• Parties: GALLISHAW v. JACKSON.
• Court: South Carolina Supreme Court

83 S.E. 454

99 S.C. 342

GALLISHAW v. JACKSON.

No. 8979.

Supreme Court of South Carolina

November 12, 1914

Appeal from Common Pleas Circuit Court of Dorchester County; C.J Ramage, Special Judge.

Action by John Henry Gallishaw against G. W. Jackson. Judgment for defendant, and plaintiff appeals. Reversed.

Gary C.J., dissenting.

Legare Walker, of Summerville, for appellant.

W. S Utsey, John A. Hiers, and John Henry Behling, all of St. George, for respondent.

GAGE J.

Action to recover possession of two acres of land lying about three-quarters of a mile from Jedburg, in Dorchester county. History: Plaintiff alleges he owned a parcel of 35 acres of land, of which this two acres is a part. One Moses Rivers, Jr., married plaintiff's daughter, and for two or three years next before the sheriff's sale, hereinafter referred to, is said to have resided upon the two acres of this parcel now in issue. Rivers was assessed for taxation with $50 of real property and $20 of personal property, for the year 1908, and a tax and penalty of $2.25 was levied thereon that year. The tax was not paid, and the two acres in issue were sold in 1909 by the sheriff to satisfy the execution, and thereat the defendant purchased and went into possession. Plaintiff sued the purchaser to recover the land. The jury found for the defendant, and the plaintiff appeals.

There are 10 grounds of appeal; but there are not nearly so many vital issues made. There were nine requests to charge; of these the court charged five, modified two, refused one, and omitted to rule upon one. One half the 10 exceptions relate to the charge; the other half relate to a refusal to direct a verdict and a refusal to grant a new trial and a refusal to hear a motion. One half the exceptions are single, the other half are split up into from two to five subdivisions, and in some instances the subdivisions are yet again divided. These exceptions will not be considered in their order, nor in detail.

The first stated is for the refusal of the court to permit counsel to "make a motion, or to state the nature of the grounds thereof at the conclusion of his case." The records shows that when the plaintiff rested, plaintiff's counsel said:

"Mr. Walker: The complaint in this case alleges that we are entitled to the possession of two acres of land situated in Dorchester Township, S. C., and the Answer admits that the proof shows that this property was in Dorchester Township and not * * *."

Thereto the court answered, "We can't go into that now, Mr. Walker." When the defense closed, the following colloquy took place:

"Mr. Walker: If your honor please, I think we are entitled to the direction of a verdict. The situation that presents itself to the court is as follows:

The Court: My construction of the law is that a tax title is prima facie good, and I could not direct a verdict in the face of that provision.

Mr. Walker: I understand that, your honor, and I bow to the decision of the court, but it seems to me that, the papers being for the court to construe, the very foundation upon which the sheriff based his action called for property in another tax division of the county. Here is an execution which is required by law, directing the sheriff to sell a lot in Summerville school district, and on that sale that he made this tax deed is based, and, instead of selling the property in the district he was directed to sell it in, he goes and sells property in another district. The Court: The location and identity of the property is a question for the jury, and I will have to overrule the motion."

It is plain that the motion that was made and the grounds of it at the close of the defense was the same the plaintiff's counsel intended to make when he rested his case. So that no harm has been done; the motion was made, and the grounds of it, and the court ruled upon it. We must assume, from the high character of plaintiff's counsel, that he would not make a frivolous motion; and we must also assume from a like character of the court that a motion made by counsel would at least be entertained. The record does not disprove that assumption, but sustains it.

The second exception was not pressed in the argument; therein "it is admitted that under the statute as it now stands the requirement that the duplicate original tax execution should be annexed to the tax deed has been dispensed with."

The other eight exceptions may be considered under two heads, for they all arise out of these two issues.

The first is that the land lay in fact in Dorchester township; but the treasurer's execution had written in it the character, "Sum. S. D.," and which mean Summerville school district; that this amounted to a direction to the sheriff to sell land situated in Summerville school district, and not land situate in Dorschester township; that if the land did in fact lie in Dorschester township and not in Summerville school district, then the sale was void, and the court ought to have so directed the jury. The circuit court did so charge the law. Requests 8 and 9. But the court left it to the jury to find whether the land lay in Dorchester township or Summerville school district. We are of opinion that the only reasonable conclusion to draw from the testimony is that the land lay without the school district; all the testimony is to that effect, and there is none contra. But we are of the opinion that the sale is not thereby avoided, and the court could not therefore have directed a verdict for the plaintiff.

A township is a body politic under the Constitution (article 7, § 11); it is a division of the county, made for governmental purposes.

A school district is a part of the county's territory divided off by the county boards of education for taxation for school purposes. Code of Laws,§§ 1738-1741.

The testimony shows there are five school districts in Dorchester township, and one of them is Summerville school district.

The statute prescribes the form and words of the execution which a treasurer shall issue against a defaulting taxpayer. Code of Laws, § 469. The form does not contemplate a description of the land directed to be sold by acres or by boundaries; it is a direction to proceed by "sale of the land of the said" delinquent taxpayer. The sheriff may take any land of the delinquent in the county that he may be able to put his hands on, just so it is the delinquent's land, and not too much. The same is true with reference to executions issued upon judgments; they do not describe the land to be seized and sold.

The characters "Sum. S. D." may refer to the location of the land, or to the residence of the delinquent. The treasurer testified:

"I always note on the execution the township and school district. This was Summerville school district, Dorchester township and Dorchester county."

It was in evidence that Rivers had paid his poll tax in the school district. The characters need not have been put there; they add to the requirements of the statute; and had they not been there, the sale would have been free from the question now made. The memorandum of the treasurer, therefore, was no essential part of the process, and the presence of it cannot therefore make void the sale.

The only reason urged for the invalidity of the sale...