Ltles v. Haskell

• Decision Date: 04 March 1892
• Citation: 35 S.C. 391,14 S.E. 829
• Parties: Ltles et al. v. Haskell et al.
• Court: South Carolina Supreme Court

14 S.E. 829

35 S.C. 391

Ltles et al.

v.Haskell et al.

Supreme Court of South Carolina.

March 4, 1892.

Summons — Proof of Service—Appointment of Guardian ad Litem — Judicial Sale of Land —Abatement for Defioienct.

1. Under Code Civil Proc. § 159, requiring, as proof of service of a summons, an affidavit stating "the time and place of service, " a return stating that defendant was served "at her residence" will be held, on a collateral attack, to sufficiently show the place of service; it appearing from the record that the land, the subject-matter of the action, was in P. county, that the action was brought in that county, and that the summons was lodged in the office of the sheriff of that county, and served by his deputy.

2. Under Code Civil Proc. § 142, providing that a case shall not abate by the death of a party, but that the court, on motion, may allow the action to be continued by or against his representative or successor in interest, in the absence of any express provision that a summons shall be served on those against whom the action is continued, the service on them of an order of continuance, containing substantially all the elements of a summons, will be sufficient.

3. Code Civil Proc. § 136, provides that, when an infant is a party to an action, he can appear only by' guardian ad litem; and section 137, subd. 2, provides that, if the infant party is a defendant, and under the age of 14, or neglects to apply for a guardian ad litem within 20 days after service of the summons, the guardian shall be appointed on the application of any other party to the action, or of a relative or friend of the infant after notice of such application being first given to the general or testamentary guardian of such infant, if he has one; if he has none, to the person with whom such infant resides. Held that, in absence of any general or testamentary guardian, service on infants, and their father, with whom they resided, of an order continuing an action against them, as heirs of a deceased defendant, and providing that they appear and answer within 20 days, and that in default thereof plaintiff might apply for an order appointing a guardian ad litem for the infants, was substantially a notice that they have a guardian ad litem to enable them to appear and answer, and that in default thereof plaintiff would proceed to have one appointed, and no further notice was required.

4. Under the provision of Code Civil Proc. § 136, that the guardian ad litem may be appointed by the court in which the action is prosecuted or by a probate judge, the guardian may be appointed by a probate judge on plaintiff's application, without any further notice, though the order of continuance served on the infants and their father provided that the application might be to "this court, " i. e., the court of common pleas, in which the action was pending.

5. Land was advertised for sale as all that tract or parcel known as the "Anderson Quarry Tract, "and the number of acres (1, 266 1/2) was mentioned as part of the description. Held, that the sale thereunder not being by the acre, and the chief element of value being the granite which the advertisement stated was found on the land in inexhaustible quantities, no abatement in the purchase price would bo made because of a deficiency of about 200 acres, in the absence of fraud and intentional misrepresentation, and evidence that the purchaser failed to get all that he valued in the purchase.

Appeal from common pleas circuit court of Fairfield county; Hudson, Judge.

Proceeding by William H. Lyles and others against Alexander C. Haskell and others for partition or sale of premises. Sale was ordered, and James F. Redding was the highest bidder, but, refusing to comply, a rule was issued against him, and after return and argument there was a decree against the purchaser, from which he appeals. Affirmed.

Simons, Siegling & Cappelmann and J. N. Nathans, for appellant.

R. W. Shand and Allen J. Green, for respondents.

McGowan, J. On February 6, 1888, W. H. Kerr, as the clerk of the court of Fairfield county, conveyed to William H. Lyles, his heirs and assigns, forever, "all that piece, parcel, tract of land lying and being in the county and state aforesnid, containing twelve hundred aud sixty-six and one-half acres, (1, 266 1/2,) more or less, and bounded by lands of J. Davis, K. Anderson, Thomas Furman, J. A. Beard, Mrs. Watt, J. P. McFie, Thomas Robertson, Glazier Robb, and others. " The deed recited that the land had been sold by order of the court of equity in the case of William K. Ryan, Assignee, vs. Thomas Anderson and others, (of which more hereafter.) On April 2, 1888, William H. Lyles conveyed the aforesaid tract of land known as the "Anderson Quarry Tract, " (described precisely as in the deed to Lyles from the clerk Kerr,) to A. C. Haskell and F. W. Dawson, trustees, to hold the same for the benefit of Rudolph Seig-ling, F. W. Dawson, A. C. Haskell, Thomas W. Woodward, and himself (Lyles) in equal one-fifth proportions. After the death of Mr. Dawson, the said W. H. Lyles instituted this proceeding for the partition or sale of the premises, and all the parties in interest being before the court, assenting, his honor, Judge With-khspoon, on December 17, 1890, ordered the premises sold, and by agreement of the parties the sale was made by A. C. Haskell, the surviving trustee, before the court-house door in Columbia, after notice of the sale, in terms as follows: "All that tract or parcel of land in Fairfield county known as the ' Anderson Quarry Tract, ' [describing it.] Upon the land is found granite of the finest quality, and in inexhaustible quantities, one ledge rising from the creek about 75 feet in height, and having an exposed area of l0 square acres, with only one or two seams through the entire body. This stone is of the very finest quality as regards appearance, durability, and the ease with which it can be worked. The titles to the property are perfect, and the opportunity will be given to a purchaser to examine into the same. Terms of sale, cash, after a reasonable time for the examination of the titles to the property, " etc. According to this advertisement, the sale was made by Judge Haskell, the surviving trustee, in Columbia, on sales-day in February, 1891, and James F. Redding was the highest and last bidder for the land, at the price of $24,610; but he declined to comply, which declination was reported to the court. Thereupon a rule was issued against the said Redding, returnable to the court at Winnsboro, to which he made an elaborate return, declining to comply with the terms of sale upon the grounds alleged, that the title was defective and the quantity deficient. After full argument, Judge Hudson filed his decree overruling all the objections to the title, and directing the purchaser to comply. From this decree Mr. Redding appeals to this court upon three grounds, as follows: "First. Because his honor erred in not holding that the minor children of Emma E. Anderson were not bound by the decree made in the case of Ryan, Assignee, vs. Anderson and others, under which William H. Lyles purchased and held the Anderson quarry tract of land, [with four specifications, which will be considered in order.] Second. Because, upon a resurvey of the property contracted to be purchased, there is a deficiency of two hundred acres, which is admitted to be of the value of $1,000, and his honor erred in not holding, either that respondent Is not bound to comply, or is entitled to a reduction of pro tanto for said deficiency; it appearing distinctly, by the advertisement under which he purchased, that the land comprised a certain number of acres, the titles to which were specially represented in said advertisement to be perfect, and under the terms of said advertisement a purchaser was en-titled to expect the greatest accuracy. Third. Because there is an unsatisfied mortgage on the premises contracted to be purchased by appellant as aforesaid, which is a lien thereon, viz., the mortgage made by W. H. Lyles to W. H. Kerr, C. C. 0. P. for Fairfield county, and assigned to Mary C. McCarter, and his honor erred in compelling appellant to comply with the terms of sale, without making provision for the payment and satisfaction of said mortgage. Fourth. Because his honor erred in requiring the respondent appellant to comply with the terms of sale, " etc.

As to the alleged defects in the title. It is not suggested that there are any inherent defects, such as the want of a grant or of perfect chain of title, etc., but only such as are claimed to have arisen out of defective legal proceedings, and in failing to have the persons in interest properly made parties. It will be noticed that no such vice is attributed to the proceedings in the case of Lyles v. Haskell et al., under which defendant made his purchase; all proper parties being before the court, and the proceedings regular, in that case. But the objections made reach further back, and assail the regularity of the old case of W. K. Bion, Assignee, v. Thomas Anderson et al., under which Mr. Lyles purchased, and which, as alleged, touch and vitiate his title as vendor. It should be mentioned, however, that these objections do not come from the parties in that case, whose title it was then the object to sell and transfer; but from a stranger to these proceedings, Mr. Redding, who afterwards happened to become the purchaser of the premises. There was an order of sale, which it is the...