Ross v. Eddins
| Decision Date | 04 April 1938 |
| Docket Number | 14655. |
| Citation | 196 S.E. 375,187 S.C. 29 |
| Parties | ROSS v. EDDINS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Chesterfield County; E. C Dennis, Judge.
Action for purchase money for realty by James Ross against Mary R Eddins, wherein the plaintiff obtained a writ of attachment against defendant's realty described in the complaint. From an order vacating the writ of attachment, the plaintiff appeals.
Reversed.
James E. Leppard, of Chesterfield, for appellant.
Knight & Arant, of Chesterfield, for respondent.
This is an appeal from an order of Hon. E. C. Dennis, judge of the Fourth circuit, vacating a writ of attachment against the real property described in the complaint in the action, on the ground that appellant did not have the legal title to the property.
The warrant of attachment was issued under the authority of section 546 of the Code of 1932, on complaint of appellant alleging:
That he was the equitable owner, although one, J. A. Welsh, was seized in fee of the legal estate, as the trustee of appellant, of a lot or parcel of land in the town of Chesterfield, county of Chesterfield, and state of South Carolina, and more particularly described in the complaint, that he had sold the premises to respondent, and, at his instance and direction, the said J. A. Welsh had conveyed the property to her; that, under the terms and conditions of the bargain and sale, the balance of the purchase price for the premises was past due and unpaid; and that he was entitled to have a warrant of attachment issued pursuant to the provisions of the Code of Laws of 1932 (section 546) for the attachment of the real property of the respondent for which the purchase money is past due and payable, for security for the satisfaction of such judgment as he may recover in the action. The complaint then demanded judgment for the sum of $1,190, the amount alleged to be the balance due and unpaid of the purchase price, and interest; and for a warrant of attachment.
At the time of the issuance of the warrant of attachment, there was filed with the clerk of court for Chesterfield county an affidavit of appellant, setting forth, in the main, the facts detailed in his complaint.
We digress at this point to refer to four affidavits contained in the record, which were used in opposition to the motion to vacate the writ of attachment, objection to any consideration of these affidavits being based on the fact that they are improperly in the record for the reason that, through error, copies thereof were not served upon respondent, and respondent had no notice that they were being used by appellant in opposition to the motion of respondent to dismiss the attachment writ.
It clearly appears from the order vacating the attachment writ that no consideration was given these affidavits, and they will not be considered by this court in passing upon the appeal.
The reason for vacating the attachment writ, as given in the order appealed from, was that appellant had failed to show that he had a "purchase money lien," but on the contrary the records clearly showed that appellant never had legal title to the lands sought to be attached, and therefore could not have a "purchase money lien." The complaint and affidavit of appellant also clearly showed that he did not have the legal title to the property conveyed to respondent. It is patent that the trial judge considered only the complaint and affidavit of appellant filed upon the issuance of the writ; and the answer of respondent, and the facts as shown by the records in the office of the clerk of court for Chesterfield county tracing and setting out in detail the source of respondent's title to the premises in question, as far back as January 1, 1921.
Respondent moved to dismiss the writ of attachment and levy thereon, upon the pleadings (the respondent having answered denying all material allegations of the complaint, and alleging that she had bought the premises for $1,000 from J. A. Welsh, all of which had been paid), and the chain of her title as disclosed by the records in the office of the clerk of court.
The following is the "Stipulation of Facts" concerning the records in the clerk's office:
" The property attached under this proceeding was conveyed on January 1st, 1921, to (by) C. B. Covington to G. W. Eddins, the deed being recorded on February 1st, 1921 in Deed Book 54, at page 245 in the proper office. On January 9, 1926 G. W. Eddins mortgaged the said tract to James Ross, which mortgage fell due one year after date; said mortgage being duly recorded on January 9, 1926 in Mortgage Book 67, at page 261 in the proper office. The aforesaid mortgage was foreclosed by proceeding begun December 22, 1930 by the issuing of summons and the decree dated March 17, 1931 ordered the mortgage foreclosed, the premises sold by the Master on salesday in April next, and that the Master make, execute and deliver a deed to the purchaser. The Master's Report on Sale dated March 17, 1932, shows J. A. Welsh the high bidder at $1000.00. An Order of the Judge of the 4th Judicial Circuit dated March 19, 1932 approved, confirmed and ratified said Report on Sale and the sale therein mentioned, both of which were declared absolute and binding forever.
Under authority of said decree J. E. Leppard, Master, on March 15, 1932, for a recited consideration of the sum of $1000.00, conveyed said premises to the high bidder, to wit: J. A. Welsh, which deed was duly recorded on March 18, 1932, in Deed Book 75, at page 73.
On April 30th, 1932, for a recited consideration of $1000.00, J. A. Welsh conveyed the aforesaid premises to Mary R. Eddins, the deed being recorded on May 2nd, 1932, in Deed Book 79, at page 200 in the proper office.
On April 30th; 1932, the said Mary R. Eddins mortgaged...
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