Garlington v. Copeland

• Decision Date: 28 January 1890
• Citation: 10 S.E. 616,32 S.C. 57
• Parties: GARLINGTON et al. v. COPELAND.
• Court: South Carolina Supreme Court

10 S.E. 616

32 S.C. 57

GARLINGTON et al. v. COPELAND.

Supreme Court of South Carolina

January 28, 1890

Appeal from common pleas circuit court of Laurens county; HUDSON Judge.

Action by Mary Y. Garlington and George F. Young against George F Copeland to have a tax-sale of land declared void, to compel defendant to account for the rents and profits thereof, and to enjoin defendant from enforcing a judgment which he had recovered against plaintiff, George F. Young. After the court had rendered its decree, and adjourned without day, defendant moved, before the judge at chambers, that the decree be amended so as to allow him credit for the amount paid by him to redeem the land from the tax-sale, and also for taxes paid by him since 1886, with interest on all of said payments from the dates thereof. This motion was refused. Both parties appeal from the decree.

Ferguson & Featherstone, for plaintiffs.

Haskell & Dial, for defendant.

NORTON J.

Under proceedings for the partition of the real estate of one W. R Young, who died in 1863, instituted in the former court of equity, a tract of land containing 550 acres, originally known as the "Duncan Tract," but subsequently designated in the litigation between these parties as the "W. R. Young Tract," was bid off by one Dean, who, refusing to comply with the terms of the sale, transferred his bid to Campbell, the commissioner in equity who made the sale, who in turn transferred this bid to one Samuel Young, who went into possession, probably, about 1st January, 1864, and so continued until his death, in 1865. He, however, did not comply with the terms of sale by giving the bond required, but deposited with Campbell the amount of the bid in Confederate treasury notes; and Campbell gave his own bond, with sureties, to himself, as commissioner in equity, and no title was ever made to Samuel Young. By his will, aid Samuel Young gave his entire estateto his son William Young, charged with the payment of legacies to each of the plaintiffs herein. William Young took possession of the real estate devised to him, including the W. R. Young tract, above referred to, in April, 1865, and continued in possession of that tract until the 1st January, 1876, when he surrendered it to the defendant, Copeland, and it continued in his possession until 1st January, 1885. We understand the circumstances of this surrender to have been as follows, viz.: On the 20th of April, 1868, the defendant, Copeland, as administrator with the will annexed, (though in another part of the record he is designated as executor,) and as next friend of the children of W. R. Young, deceased, (minors,) filed a bill in equity against Margaret L. Young, the widow of W. R. Young, B. R. Campbell, and William Young, claiming that the sale of the W. R. Young tract of land to Campbell as commissioner in equity was void, and that the land still belonged to the estate of his testator, W. R. Young, and was subject to the payment of his debts, or to partition among his heirs. To this bill, William Young answered, claiming that said tract of right belonged to his testator, Samuel Young, who, he alleged, had paid the purchase money, and was entitled to receive titles from the then commissioner in equity. This case, however, seems never to have come to a hearing, and no decree was ever rendered therein. Much valuable land in Laurens county was advertised to be sold for taxes in May, 1875, as the estate of Samuel Young, deceased, embracing the W. R. Young tract. Before the sale, and prior to William Young's conveyance to the plaintiffs, hereinafter mentioned, William Young and the plaintiff George F. Young agreed that, if defendant, Copeland, would bid off the lands so advertised for sale, and pay the arrears of taxes thereon, and lend George F. Young money to redeem other valuable lands sold for taxes the previous year, and discontinue his suit in equity, he should have the W. R. Young tract for the estate of W. R. Young, possession to begin on the 1st of January, 1876, (Judge HUDSON finds that he took possession, '7Fnot as trespasser, but peaceably." " Did not promise, nor admit his liability, to pay rent," "and is not to be dealt with harshly,"--negativing entry by fraud;) and, further, that George F. Young would repay the moneys paid for all the other lands. Copeland complied with his stipulations, and possession of the W. R. Young tract was surrendered to him as had been agreed, although there had been irregularities in the sale and survey which prevented the auditor from giving a deed to the Laurens land, embracing the W. R. Young tract; and although, as testified to, defendant, Copeland, had announced that he was bidding for the benefit of the minor George F. Young. Doubtless he thought the carrying out of the agreement was for the benefit of George F. Young. The lands to be sold and redeemed as aforesaid were those of which William Young took possession under his father's will. Subsequent to the surrender, to-wit, on 7th April, 1876, he made a deed for these lands and certain personalty to the plaintiffs, in settlement of their legacies from Samuel Young. It further appears that on the 23d of November, 1883, an action was commenced by the clerk of the court, presumably as successor of the former commissioner in equity, for the use of the heirs of W. R. Young, for the purpose of enforcing the payment of the bond of Campbell, and for a sale of the W. R. Young tract, under the statutory mortgage, we presume. To this action both the plaintiffs and the defendant herein were made parties defendants. The plaintiffs herein answered, contesting the claim set up, but the defendant, Copeland, did not appear or answer. This action resulted in a compromise, whereby it was agreed that upon the payment by the plaintiffs herein of a specified sum of money to the heirs of W. R. Young the master should be ordered to make a deed to these plaintiffs for the W. R. Young tract, and that the sum so specified should be in full satisfaction of the bond, as well as for any claim for rents of said tract which the heirs of W. R. Young might have. The terms of this compromise having been incorporated in a decree of the court rendered on the 10th of October, 1885, and the amount of money therein specified having been paid, the master, on the 13th of October, 1885, made a deed for the W. R. Young tract to the plaintiffs herein. The foregoing statement, which presents a mere outline of the somewhat complicated transactions which have given rise to the present controversy, seems necessary for a proper understanding of the case now presented.

By this action, which was commenced on the 10th of November, 1884 the plaintiffs demand judgment that the tax-sale under which defendant claims to have bought the W. R. Young tract of land be declared void, and the certificate of sale issued to him be canceled; that the defendant account for the rents and profits of said tract of land during the time it was in his possession; and that defendant be enjoined from enforcing the judgment, mentioned in the complaint, heretofore recovered by him against the plaintiff George F. Young. The defendant answered, denying the claim of the plaintiffs to the rents and profits of the W. R. Young tract, but claiming that he went into possession of that tract for the benefit of the heirs at law of W. R. Young, who, he claims, are the legal owners of the same; the sale to Campbell while commissioner being void, and its terms never having been complied with. He also alleges that this tract, together with other lands which did belong to the estate of Samuel Young, were offered for sale for taxes, and bid off by defendant, who advanced the money necessary to pay the taxes in arrear, and did thereafter, in pursuance of an agreement with the plaintiff George F. Young allow him and the other plaintiff to enter into possession of all the land so bid off by defendant, except the W. R. Young tract, which was the subject of the action then pending, to set aside the sale thereof under the proceedings for partition; and, in consideration of the advance by the defendant of the money necessary to redeem the lands properly belonging to the estate of Samuel Young, defendant was allowed peaceably to take possession of the W. R. Young tract for the benefit of the heirs of W. R. Young, and has ever since retained possession of the same, but has been so much interfered with by plaintiffs that the possession has been of little value to him, and the property has yielded but little, if anything, more than enough to pay the taxes and other necessary expenses in maintaining the same. In his amended answer, defendant alleges that his purpose in taking possession of this tract was, first, to remunerate himself for the amount advanced to redeem the same, together with the current taxes and expenses, and then to turn over the land to the heirs of W. R. Young, but that the rents received have not been sufficient for that purpose; and he sets out the amounts thus advanced and paid by him, and asks that, in case he be required to account to plaintiffs for the rents and profits of the W. R. Young tract, that he be allowed credit in such accounting for the amount originally advanced by him to redeem that tract at the tax-sale, as well as all amounts since paid by him for taxes on the same, and other necessary expenses. By consent, the issues of law and fact were referred to the master for determination, who made a report finding the facts substantially as stated in the commencement of this opinion, and finding, as matter of law, that defendant was liable to account for rents and profits during the time he had possession of the land. He fixed the rents at $240 per year for the nine years during which he had possession, to-wit, from...