Poole v. Jefferson Standard Life Ins. Co.

• Decision Date: 29 October 1934
• Docket Number: 13929.
• Citation: 177 S.E. 24,174 S.C. 150
• Parties: POOLE v. JEFFERSON STANDARD LIFE INS. CO. et al. JEFFERSON STANDARD LIFE INS. CO. v. STANDARD BLDG. CO. et al.
• Court: South Carolina Supreme Court

177 S.E. 24

174 S.C. 150

POOLE v. JEFFERSON STANDARD LIFE INS. CO. et al.

JEFFERSON STANDARD LIFE INS. CO. v. STANDARD BLDG. CO. et al.

No. 13929.

Supreme Court of South Carolina

October 29, 1934

Appeal from Seventh Judicial Circuit Court of Spartanburg County; T S. Sease, Judge.

Action by the Jefferson Standard Life Insurance Company against the Standard Building Company and others for the foreclosure of a mortgage, in which the mortgaged premises were sold. On a rule obtained by plaintiff against Dixon L. Poole, Jr., and others, each party asked confirmation of bid, and, from an adverse judgment, Dixon L. Poole, Jr., appeals.

Reversed with directions.

Johnson & Johnson, of Spartanburg, for appellant.

Jesse W. Boyd, of Spartanburg, for respondents.

BONHAM Justice.

Jefferson Standard Life Insurance Company obtained judgment against Standard Building Company et al. for foreclosure of a mortgage of real estate. The mortgaged premises were sold by the master for Spartanburg county, at public outcry, on Saturday December 4, 1933, pursuant to the directions of the decree of foreclosure, at which sale the only bid for the property was that of $25 made by J. H. Rothrock.

The present litigation arose over subsequent events relating to bids made, or attempted to be made, during the thirty-day period when the bidding was still open, under the provisions of the acts of 1932 and 1933 regulating such sales, the pertinent provisions of which are these: "Section 1 From and after the approval of this Act, in all judicial sales of real estate the bidding shall not be closed upon the day of sale, but shall remain open until noon of the thirtieth day after the sale, exclusive of the day of sale, within which thirty days period any person, other than the highest bidder at the sale or any representative thereof in foreclosure suits, may enter a higher bid upon complying with the terms of sale by making any necessary deposit as a guaranty of his good faith, and thereafter within such period any person other than such highest bidder at the sale or any representative thereof in foreclosure suits, may in like manner raise the last highest bid, and the successful purchaser shall be deemed to be the person who submitted the last highest bid within said period and make the necessary deposit or guaranty: Provided, That if the thirtieth day falls on Sunday, the bidding shall be so closed at noon on the Monday immediately following."

Quoted from section 1 of Act No. 366, Acts 1933 (38 St. at Large, p. 511), which act amends the act of 1932 (37 St. at Large, p. 1529) regulating judicial sales.

A question having arisen between Jefferson Standard Life Insurance Company and Dixon Poole, Jr., as to which had made the last bid, the master declined to make deed to the premises to either of the claimants until this question was settled. Thereupon the insurance company obtained from his honor, Judge Sease, the resident judge of the circuit, a rule against the master, Mrs. Ray (who is no longer interested in the case), and D. L. Poole, requiring them to show cause why the bid of the insurance company should not be accepted and deed made to it. The rule was returnable January 20, 1934. The master made no return at the time, but did subsequently. Poole made no return at that time, but appeared by his counsel, Johnson & Johnson, and made oral objection to the jurisdiction of the court on the ground that the court could not hear the matter on motion and affidavits, he having, since the service of plaintiff's motion, commenced an action against the master alone. He also moved to refer the matter to a special master. The objections and motion were overruled. The hearing was continued, and this appellant, by leave of the Court, was allowed to file return and affidavits, which he did.

Each party asked the confirmation of its and his bid, and protested the confirmation of the bid of the other.

The matter was heard by Judge Sease January 27, 1934. January 30, 1934, Judge Sease filed an order confirming the bid of Jefferson Standard Life Insurance Company and directing the master to make deed to it to the premises so sold by him.

From this order, the rulings, and other orders of the court, Dixon L. Poole, Jr., appeals upon fourteen exceptions. He also appeals from the order of Judge Sease which settles the "Case" for hearing in this court. It will not be necessary to discuss each of these exceptions, but all of them will have consideration.

It appears from the record that J. H. Rothrock made the only bid at the public sale of the mortgaged premises; it was for $25, which was entered by the master on his sales book. The appellant contends that this bid was made by J. H. Rothrock at the request of J. W. Boyd, Esq., the attorney of the Jefferson Standard Life Insurance Company, and this fact deprives the insurance company, under the terms of the statute, from raising the bid. It was obligatory upon the appellant to prove that this bid by Rothrock was made on behalf of the insurance company. It has offered no evidence in support of its contention thereabout; whereas the affidavits of Mr. Rothrock and Mr. Boyd show that the contention is without merit.

The time limit fixed by the act of 1933 in which the Rothrock bid could be raised was 12 o'clock, noon, of the 3d day of January 1934. Before that hour Dixon L. Poole, Jr., went to the office of the master and made a bid of $500 for the property, which was entered on the sales book. During the forenoon of that day, Mr. Jesse W. Boyd, the attorney of the mortgagee, Jefferson Standard Life Insurance Company, went to the office of the Master, and, finding him absent, said to the clerk of the master, Miss Stuckey, that he would raise the bid on the property. He affirms in his affidavit that he is confident in his belief that he stated to her the name of the property and the amount of the bid. She does not remember that he stated the name of the property or the amount of the bid. No entry was made upon the sales book, nor did she inform the master of this occurrence upon his return to his office. The master testifies that he left his office shortly after 11 o'clock, but returned before noon, in time to have entered all bids in his sales book before noon; that the bid of Dixon L. Poole, Jr., of $500 was the last so entered-and the legal deposit made. He thereupon notified Mr. Poole that he was the last bidder. On his return from luncheon about 3 o'clock p. m., he found on his desk a letter from Mr. Jesse W. Boyd which sought to offer a bid of $4,000. This letter must have reached his office in the mail about 2 o'clock p. m.

Mr. Boyd testifies that he does not remember the exact time he mailed the letter, but it was in the morning after he had returned from the master's office, that shortly after 9 o'clock that morning he went to the master's office for the purpose of raising this bid; and for this reason he told Miss Stuckey, the office stenographer, that it was necessary for him to raise this bid, and, although she does not appear to remember it, he still believes that he stated to her the amount of his bid. Deponent's intention was to state it. He thought at the time his bid was being entered on the sales book.

When the master received Mr. Boyd's letter, he wrote Mr. Poole of the fact that Mr. Boyd had offered a bid of $4,000, and that he would not make deed to either of them until it was settled to whom it should be made.

These are the cardinal facts around which the determination of this controversy revolves.

There is no doubt that the bid of the appellant was regularly and timely made. There is no doubt that the bid of Mr. Boyd for the insurance company was not entered on the master's sales book and that the deposit required by the act was not made.

Do these facts preclude the court of equity from inquiring into the sale, and was the method pursued by the respondent the correct one to bring the matter within the jurisdiction of the court?

There is no question that it is the policy of the courts to uphold judicial sales when regularly made.

As said in Farr v. Gilreath, 23 S.C. 502: "It is the...