Rives v. Bulsa, 2591
| Decision Date | 25 November 1996 |
| Docket Number | No. 2591,2591 |
| Citation | 478 S.E.2d 878,325 S.C. 287 |
| Parties | Brian J. RIVES and Karen M. Rives, Respondents, v. Daniel B. BULSA, Felix A. Bulsa and Carolina Southern Bank, of whom Daniel B. Bulsa and Felix A. Bulsa are Appellants, and Carolina Southern Bank is Respondent. |
| Court | South Carolina Court of Appeals |
Felix A. Bulsa, Inman, pro se.
Michael N. Duncan, of the Whiteside Firm, Spartanburg, for Respondents Rives.
Judson K. Chapin, III, Gaines, Walsh & Chapin, of Spartanburg, for Respondent Carolina Southern Bank.
Respondents, Brian and Karen Rives, brought this action to set aside a tax deed to appellants, Daniel and Felix Bulsa. Respondent Carolina Southern Bank moved to intervene by virtue of its interest in the subject property by way of a mortgage lien. The matter was referred to the master in equity with final appeal to the Supreme Court. The master declared the tax sale null and void for failure of the tax collector to comply with statutory requirements surrounding the tax sale. He further found, notwithstanding the nullification of the tax deed, no notice was given to Carolina Southern Bank and, thus, the purchaser under the tax deed would have taken the property subject to the mortgage lien. The Bulsas appeal. We affirm. 1
In 1985, title to the subject property located in Spartanburg County was vested in Irene R. Rives as a result of a divorce between Mrs. Rives and William J. Rives, the parents of Brian and Karen Rives. Mrs. Rives died intestate on May 11, 1986, leaving Brian and Karen as her heirs at law. The property is reflected on the real estate inventory list of the Estate of Irene Rice Rives filed in the Spartanburg County Probate Court. Record notice of the vesting of title in the children is reflected in these public records. At the time of her death, Brian was seventeen years of age and Karen was fifteen. Consequently, their father managed the property for them. On December 11, 1989, subsequent to the children attaining the age of majority, Brian and Karen Rives mortgaged the property to secure a loan by Carolina Southern Bank to William Rives. This mortgage was recorded on December 15, 1989 in the Spartanburg County R.M.C. office. The mortgage likewise reflects ownership in Brian and Karen Rives as the result of Irene dying intestate.
From 1986 through 1993 the tax notices for this property were sent to Irene Rives. In 1986 the notice was sent to Irene at a street address in Spartanburg. Thereafter, the notices were sent as follows:
Rives, Irene R.
% William J. Rives
P.O. Box 18081
This post office box was used by William Rives, but never his children.
The taxes were not paid on the property for 1992 and the property was sold at the October 1993 tax sale to Daniel and Felix Bulsa. The county tax collector mailed a notice of delinquent property taxes to Irene R. Rives in care of William J. Rives at the Spartanburg post office box. He also sent a notice of seizure, levy and tax sale, a notice of right of redemption, and a final notice of sale and right of redemption in the same manner. The final notice was returned, marked with a "forwarding order expired" notation. Subsequently, on or about September 1, 1994, a field agent contacted William Rives by phone regarding the tax sale and the right of redemption. During this conversation, William Rives told the field agent that Irene Rives was deceased and the property belonged to his children. The field agent did not report this to the tax collector and no one ever contacted or sent any notices to Brian or Karen Rives about the matter.
The master found that Brian and Karen Rives were the owners of the property at the time in question, that the public records of Spartanburg County reflected the names of the correct owners and mortgage holder and the notices required by S.C.Code Ann. § 12-51-40(a) and (b) were defective inasmuch as they neither contained the names of the owners of record nor their addresses. Because the statutory requirements were not followed, he declared the tax deed null and void. He further held, independent of the ruling setting aside the tax deed, the purchaser
under the tax deed would have taken the property subject to the mortgage lien held by Carolina Southern Bank since the bank received no notice.
1. Whether the master erred in finding the statutory requirements of S.C.Code Ann. § 12-51-40(a) and (b) were not followed.
2. Whether the master erred in concluding that, even had the tax deed not been set aside, the purchaser under the tax deed would have taken the property subject to the mortgage lien.
3. Whether the master erred in accepting noncertified documents and testimony of an attorney based on research by the attorney's paralegal.
4. Whether the master erred in proceeding with the hearing without the presence of counsel representing the Spartanburg County Tax Collector.
LAW/ANALYSIS
Appellants first contend the master erred in determining the notice requirements of S.C.Code Ann. § 12-51-40(a) and (b) were not met. They assert the testimony shows William Rives was acting as an agent for his children and, therefore, the notices were sent as required by law to the owner of record at the best possible address. We first note this agency argument is apparently raised for the first time on appeal. Although appellants asked some questions geared toward establishing an agency relationship between William and his children, they never argued to the court that notice sent to an agent is sufficient under § 12-51-40(a) and (b). Further, the master did not rule on this argument. See Mims v. Alston, 312 S.C. 311, 440 S.E.2d 357 (1994) (); Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d 122 (1991) (); Hoffman v. Powell, 298 S.C. 338, 380 S.E.2d 821 (1989) (). Further, even if we were to find the issue properly raised, we would nevertheless hold that the master properly determined the tax collector failed to comply with the statutory requirements of the tax sale and the deed was therefore null and void.
S.C.Code Ann. § 12-51-40 (Supp.1995) provides in pertinent part:
After the county treasurer issues his execution against a defaulting taxpayer ... the officer to which the execution is directed shall:
(a) On April first or as soon thereafter as practicable, mail a notice of delinquent property taxes, penalties, assessments, and costs to the owner of record at the best address available which is either the address shown on the deed conveying the property to him, the property address, or such other corrected or forwarding address that the owner of record has filed with the appropriate tax authority and to a known grantee of the delinquent taxpayer of the property on which the delinquency exists. The notice must specify that if the taxes, penalties, assessments, and costs are not paid, the property must be advertised and sold to satisfy the delinquency.
(b) If the taxes remain unpaid after thirty days from the date of mailing of the delinquent notice, or as soon thereafter as practicable, take exclusive possession of so much of the defaulting taxpayer's property as is necessary to satisfy the payment of the taxes, assessments, penalties, and costs may be taken. In the case of real property, exclusive possession is taken by mailing a notice of delinquent property taxes, assessments, penalties, and costs to the defaulting taxpayer at the address shown on the tax receipt or to a more correct address known to the officer, by "certified mail, return receipt requested--deliver to addressee only"....
(emphasis added).
South Carolina appellate courts have consistently held the enforcing agencies of government to strict compliance with all the legal requirements surrounding tax sales. Dibble v. Bryant, 274 S.C. 481, 265 S.E.2d 673 (1980); Manji v. Blackwell, 473 S.E.2d 837 (Ct.App.1996) (Davis Adv.Sh. No. 16 at 23). The...
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