Glymph v. Smith

• Decision Date: 01 June 1936
• Docket Number: 14301.
• Citation: 185 S.E. 911,180 S.C. 382
• Parties: GLYMPH v. SMITH et al.
• Court: South Carolina Supreme Court

185 S.E. 911

180 S.C. 382

GLYMPH v. SMITH et al.

No. 14301.

Supreme Court of South Carolina

June 1, 1936

Appeal from Common Pleas Circuit Court of Newberry County; Philip H Stoll, Judge.

Action by Ernest L. Glymph against Mamie G. Smith and others. Judgment for plaintiff, and defendants appeal.

Reversed and complaint dismissed.

Lambert W. Jones and Joseph C. Hiott, both of Newberry, for appellants.

B. V Chapman, of Newberry, for respondent.

FISHBURNE Justice.

On March 22, 1926, G. Fred Smith, of Newberry county, died intestate, seized in fee and possessed of the 69-acre tract of land around which this controversy revolves. He left surviving him the defendants, his widow, Mamie G. Smith, and his two minor children, Dorothy A. Smith and Jenkins H. Smith; the latter two being represented in this action by their guardian ad litem. In March, 1927, this land was sold by the sheriff at a delinquent tax sale, to enforce the collection of taxes due and unpaid thereon for the years 1925 and 1926, which, together with the costs and penalties, amounted to the sum of $71.13.

A short factual statement, derived from the record, is necessary in order to show how the issues arose in this action. The essential facts are not in dispute.

The main issue to be decided is whether or not the statutory requirements providing for the sale of real estate for delinquent taxes were complied with. The deputy sheriff testified before the special referee to whom the cause was referred that he went to the home of the defendants on the land in question, and that he told Mrs. Smith: "I was collecting taxes, and asked her if she could pay them. She told me that she could not pay them, and I told her that I would have to make a levy on it." This is the sole testimony tending to prove that the sheriff "did seize and take exclusive possession" of the property of the defaulting taxpayer's estate, as required in section 2855, Code 1932. Thereafter, as stated, the land was duly advertised for sale by the sheriff, and sold at public sale in March, 1927. The property was bid in by the plaintiff for the sum of $300, and, upon the expiration of twelve months, viz. in March, 1928, the sheriff executed and delivered to the plaintiff a tax deed of the property.

Before the death of G. Fred Smith, he had given three mortgages over the property in question. The first in rank and priority was owned by his brother, Tom H. Smith, the second by the Exchange Bank of Newberry, and the third by the National Bank of Newberry. This latter bank, however, is not a party to this cause. From the purchase money realized from the tax sale the sheriff paid the taxes, and with the balance ($228.87) paid and discharged the first mortgage, held by Tom H. Smith. This mortgage was then satisfied of record. Some time prior to the tax sale the plaintiff had purchased and acquired by assignment the mortgage held by the Exchange Bank. After he received his deed from the sheriff, the plaintiff attempted to sell the land to three or four persons, all of whom refused to purchase, giving as their reason that the tax deed held by the plaintiff was defective.

In March, 1929, a year after he had received his deed, he entered into an agreement with the defendant Mamie G. Smith to sell her the land for the purchase price of $700. He explains in his testimony that this amount included the $300 he had paid at the tax sale and $400 due on the mortgage which he had acquired from the Exchange Bank. The plaintiff and Mrs. Smith then met in the office of Mr. Holloway, a lawyer of Newberry, for the purpose of having him draw the necessary papers to complete the transaction. While there, Mr. Holloway told Mr. Glymph, the plaintiff, that "he had better foreclose his mortgage (the Exchange Bank mortgage) instead of taking it (the land) under the tax sale," and that "he did not know for certain what became of the children's interest in the property." As a result of the conference, however, a deed was prepared, which was executed by the plaintiff, purporting to convey the land to Mrs. Smith, and contemporaneously she executed a mortgage to secure the sum of $500 and recited therein that she conveyed "All my right, title and interest." The cash portion of the purchase money to be paid was $200, but only $160 of it was paid at this time. Within a year, however, Mrs. Smith made a further payment on the mortgage indebtedness of $100, making the total amount paid by her $260.

This action was commenced by the plaintiff in October, 1933, against Mamie G. Smith for the foreclosure of the mortgage referred to. The two minors, Dorothy A. Smith and Jenkins H. Smith, were made parties defendant under the allegation that they claim an interest in the land sought to be foreclosed.

The Special Referee held and reported that all of the legal prerequisites of the tax sale had been complied with, and that the plaintiff, Ernest L. Glymph, acquired good title to the land under the sheriff's tax deed, and was entitled to the foreclosure of his mortgage. Upon exceptions to the report of the referee being taken to the circuit court, the report was affirmed and sustained in every particular, in a formal decree providing for the sale of the property. All of the defendants have appealed to this court from the circuit decree, raising several issues, which will now be discussed.

The defendants launch a direct attack upon the regularity of the sheriff's sale under which this land was sold for delinquent taxes, and challenge the validity of the deed made by him to the plaintiff.

It is a well-established rule that one holding a sheriff's deed for land purchased at a delinquent land sale for the nonpayment of taxes has prima facie good title, but this presumption may be rebutted by proof of the noncompliance with the necessary legal prerequisites of the sale. See section 2859, Code 1932, and cases cited and annotated thereunder.

Obviously this legal presumption has been rebutted and overcome in this case by the testimony of the deputy sheriff to which we have referred.

Section 2855, Code 1932, provides that "under and by virtue of said warrant or execution, the sheriff shall seize and take exclusive possession of * * * the defaulting taxpayer's estate," etc.

What the deputy sheriff actually did, as disclosed by the testimony, lacks much of complying with this statutory requirement.

Commenting upon this section of the Code, Mr. Justice Woods, in the case of Dickson v. Burckmyer, 67 S.C. 526, 46 S.E. 343 348, in an opinion unanimously concurred in, said that "the requirement [to seize and take exclusive possession], is one which greatly concerns the defaulting owner of the land, for the seizure and taking possession by the...