Leconte v. Irwin

• Decision Date: 02 July 1883
• Citation: Leconte v. Irwin, 19 S.C. 554 (S.C. 1883)
• Parties: LECONTE v. IRWIN.
• Court: South Carolina Supreme Court

19 S.C. 554

LECONTE

v.IRWIN.

Supreme Court of South Carolina.

Jul. 31st, 1883.

1.An order vacating a judgment by default, under section 195 of the code, is within the discretion of the Circuit judge, and there is no appeal to this court, unless he commit some error of law.

2.In an action for foreclosure, a judgment by default was rendered and sale ordered, which was made, the property being bid off by plaintiff's attorney, who transferred his bid to a stranger, and such stranger complied and received titles.Afterwards, motion was made by defendant to open the default upon the ground of excusable neglect, and the motion was granted and the sale and title-deed annulled.Held that the Circuit judge erred in directing the sale and deed to be set asde.

3.Plaintiff's attorney may be a bona fide bidder at a judicial sale, and the defendant has no ground of complaint if such attorney become the purchaser.

Before HUDSON, J., Richland, April, 1883.

Action by Harriet LeConte against Margaret Irwin.The opinion states the case.

In granting the motion, Judge Hudson said:

This case came on to be heard before me upon a report of sale by the master and a motion to confirm the same, and upon a motion by the defendant to set aside the judgment and vacate all proceedings thereunder.The last motion was supported by affidavits, and counter-affidavits were read in opposition thereto.***

It is in the discretion of the Circuit judge, upon such a motion as this, to vacate a judgment obtained against a party by his mistake, inadvertence, surprise or excusable neglect.The only ground upon which I can vacate this judgment is that of excusable neglect, and the irregular, if not illegal, mode of entering and enforcing the judgment for money and foreclosure and sale.This operated as a surprise and hardship upon the mortgagor, entitling her to ask relief.

If it would result in irreparable injury to the purchaser at the sale, I would not disturb vested rights under the decree, or set aside the sale; but this property having been bid in by the plaintiff's attorney, which is the same thing as the plaintiff himself, and William H. Monckton, being the assignee of the plaintiff's bid, steps into the plaintiff's shoes, and can be fully protected by subrogating him to the plaintiff's rights under the bond and mortgage for the amount paid by him, together with the expenses in connection with the transaction and the examination of the title, and interest thereon.

It is therefore ordered that the decree in said cause, and the sale made thereunder by the master of the premises set forth in the complaint, be and the same are hereby vacated, set aside and annulled, and that the defendant, Margaret Irwin, have leave to file an answer to the complaint herein within twenty days from the date of this order.***

Mr. W. H. Lyles, for appellant, cited 7 S. C. 76;10 Id. 268;16 Id. 362;18 Id. 602;7 Id. 381;16 Id. 504, 282;Ror. Jud. Sale, §§ 138, 139;Rich.Eq. Cas. 228.

Mr. R. A. Lynch, contra, relied on Truett v. Rains, 17 S. C. 451.

The opinion of the court was delivered by

MR. JUSTICE MCGOWAN.

The plaintiff held a bond of the defendant, secured by mortgage of a house and lot, for $849, with interest from date, October 7th, 1880, (with the privilege of paying twenty dollars per month until the whole should be paid,) payable in four equal annual installments.Neither the bond nor the mortgage contained a stipulation that in default of payment of one installment the whole was to become due.So that $212.25, besides interest, became due on October 7th, 1881, and a like sum on the same days in 1882, 1883 and 1884.

On October 13th, 1881, the plaintiff instituted proceedings to foreclose the mortgage.The defendant was served with summons, but made no defense.The case was referred to the master, and on July 25th, 1882, he filed his report, stating correctly that there was due the first installment and interest, $319.17, and the further sum of $636.75 was not due, whereupon Judge Witherspoon, July 28th, 1882, ordered that the defendant, Margaret Irwin, should, on or before the 1st day of September, 1882, pay to the plaintiff the whole bond, $955.92, and in default thereof the house and lot should be sold.Under this judgment, the master, N. B. Barnwell, Esq., offered the house and lot for sale on sales-day in November, 1882, and it was bid off by Mr. Marshall, plaintiff's attorney, for $750, and the bid was entered to “J. Q. Marshall, attorney.”The bid was afterwards transferred by J. Q. Marshall to W. H. Monckton, and on February 7th, 1883, John T. Seibles, Esq., master of Richland county, and successor of N. B. Barnwell, Esq., who had made the sale, executed and delivered to W. H. Monckton a deed for the premises, he having complied with terms of sale.

On February 8th, 1883, the day after the titles were-executed as above stated, the defendant, Mrs. Irwin, through Mr. Lynch, her attorney, gave notice of a motion to set aside the judgment and all proceedings thereunder, upon two grounds: “First, that if certain money paid by the defendant to the plaintiff or her agents had been properly credited upon said bond, no right of action would have accrued to the plaintiff; and, second, for surprise, in this, that the defendant was not aware, until judgment had been obtained against her, that the payments referred to had not been credited upon the bond, and for such other relief as may be just, &c.”Judge Hudson heard the matter upon affidavits in connection with the master's report on the sale, and granted an order setting aside the judgment, on the ground of “excusable neglect” on the part of the defendant, Mrs. Irwin, when the judgment and the order of sale were entered against her, and gave her permission to answer.He also set aside the sale made under that decree, and the title executed to Monckton, who had been served with notice of the proceedings.

From this order both Mrs. Le Conte and Monckton appeal to this court upon the following exceptions: “1.Because his Honor refused the motion of plaintiff to confirm the master's report of sale.2.Because his Honor considered as evidence of the value of the property, the statements of defendant's counsel in argument.3.Because his Honor concluded that there was error in the decree of Hon. I. D. Witherspoon, Circuit judge, filed in said case.4.Because his Honor vacated the decree and the judgment in said cause upon the ground of error therein.5.Because his Honor decreed that the sale to W. H. Monckton should be set aside and annulled, and that the deed executed by the master to said Monckton should be delivered up to be canceled.”

Section 195...