Gardner v. Nash
| Decision Date | 19 May 1954 |
| Docket Number | No. 16872,16872 |
| Citation | 82 S.E.2d 123,225 S.C. 303 |
| Parties | GARDNER v. NASH. |
| Court | South Carolina Supreme Court |
Robinson, Robinson & Dreher, Columbia, E. C. Dennis, Jr., Darlington, for appellant.
Tison & Tison, Hartsville, for respondent.
This action was brought to set aside a sale made by the Master for Darlington County under a decree foreclosing a mortgage given by Etson R. Gardner to the Bank of Hartsville, and to require the purchaser, K. C. Nash, to reconvey the property to Gardner upon the ground that by Nash's fraudulent conduct, the bidding was chilled and the property purchased by him at far less than its real value. Joined as defendants with Nash were Edwin P. Guy and James E. Powe to whom two mortgages were given by Nash after he obtained deed from the Master, but the assignee of these mortgages disclaims any lien upon or interest in the property. Guy and Powe, therefore, are not concerned with any of the issues involved on this appeal and the action may be regarded as one by Etson R. Gardner against K. C. Nash. Upon issues being joined, the cause was referred to the Master for Darlington County for the sole purpose of taking the testimony. The case was thereafter heard by the resident Judge of the Fourth Circuit who granted the relief sought in the complaint and, further, awarded judgment in favor of Gardner for $499.66, representing the fair rental value of that part of the property occupied by Nash, less the amount paid by him for the land, with interest.
On this appeal, the first question raised is that the testimony does not sustain Gardner's claim that Nash acquired the property by fraud. It is said that Nash was the highest bidder at a fairly conducted judicial sale.
Gardner acquired under the will of his father approximately 160 acres of land in Darlington County from which at various times he sold several parcels, leaving approximately 137 acres, about half of which was cleared. He lived in a rented house near this property and for a number of years farmed about 13 acres of the 137 acre tract, and rented the remainder for $300 a year. The Bank of Hartsville held a mortgage on this tract of land executed by Gardner which, with other indebtedness to the bank, amounted to approximately $1,100. This mortgage was foreclosed and the property advertised for sale on salesday in July, 1947.
The testimony offered by Gardner to sustain the claim of fraud was substantially as follows: Several weeks before the sale, Nash went to see Gardner, whom he had known for a number of years, and inquired what he was going to do about the property. Gardner replied that he intended to let it go to the highest bidder and with his equity in the proceeds of sale buy a small place elsewhere so that he would be free of debt. Nash argued that this would be a mistake and that Gardner would always regret losing his home place. He offered to bid in the property for Gardner and advance the purchase price. Gardner was not favorably inclined to this suggestion. They met several times later and discussed the matter without any definite agreement. Finally, they met at the court house just prior to the sale and after some discussion, reached an agreement whereby Nash would bid in the property for and take title in the name of Gardner, and advance the purchase price. Gardner was to continue farming the land which he had been cultivating. Nash was to rent the remainder for $300 a year, the amount Gardner previously received, which would be annually applied on the purchase price until Nash was fully reimbursed, with the option on the part of Gardner to terminate this arrangement at any time after one year by paying the balance of the purchase price. After this agreement was made, Gardner in the presence of Nash, stated to several who contemplated bidding that they could do so or not as they wished, but that Nash was going to bid the property in for him. Those two remained together during the sale and it was generally understood by those present that Nash was bidding for the benefit of Gardner. The first bid was by the attorney for the Bank of Hartsville. The next was by a party who had purchased a small parcel from Gardner but failed to have his deed recorded prior to the mortgage. He was seeking to protect his interest. After one further bid, the property was knocked down to Nash for $1,100. Although several were willing to buy the property at a far greater price, they abstained from bidding because they did not care to run the price up on Gardner. One of these prospective purchasers intended to bid $3,500 and had with him his father-in-law's check for that amount. Another stated that he intended to bid $4,000.
There was abundant testimony showing that at the time of the sale the property was worth, exclusive of the timber, $5,000 or more. There was a tobacco allotment on the place of five or six acres which was very valuable. About three-fourths of the timber had been previously conveyed by Gardner to Nash, but the foreclosure sale, according to the finding of the Circuit Judge to which there is no exception, included this timber because the bank's mortgage was recorded prior to the timber deed.
Nash's version of the transaction is entirely different. He says that he bid in the property subject to an understanding that Gardner could take over his bid at any time before he was required to comply. He testified that after he had been notified by the attorney for the bank that compliance must be had by a specified date or the property would be resold, he went to see Gardner who stated he was not interested in buying. Nash says that he then proceeded to borrow the purchase price and comply with the terms of sale, taking deed in his own name free of any obligation to Gardner.
The deed of the Master to Nash was executed on August 11, 1947, although Gardner testified that it was not until sometime in 1952 that he learned that Nash had taken title in his own name.
There is abundant evidence to the effect that in 1948 and on several occasions in subsequent years, Gardner with money which he had arranged to borrow from his sister endeavored to close the transaction by the payment of the purchase price, but each time Nash asked that settlement be deferred until certain other affairs of his were straightened out.
In the fall of 1947, Gardner gathered his crops as usual and collected his rent. It is admitted that he has since continued in possession of that part of the land which had been previously cultivated by him but there is a sharp dispute as to the character of this possession after 1947. Gardner testified that in 1948 and 1949, Nash financed his farming operations under an arrangement whereby the proceeds from the tobacco would be equally divided but that Nash had nothing to do with the grain planted. Nash claims that during these years, the land occupied by Gardner was sharecropped and each fall a division of all crops was made on the customary basis, and that in 1950 and '51, he rented this portion to Gardner for a cash rental. Gardner denied ever renting any of the property from Nash.
The Circuit Judge concluded that the clear preponderance of the testimony sustained the claim of fraud. He found that the fair value of...
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...one to do so may amount to a suppression of a fact which should have been disclosed, and constitute a fraud." Gardner v. Nash, 225 S.C. 303, 82 S.E.2d 123, 127 (1954). Thus, if Chrysler suppressed a material fact that duty obligated it to disclose, it effectively made a false representation......
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