South Carolina Federal Sav. Bank v. Atlantic Land Title Co., Inc.

• Citation: 442 S.E.2d 630,314 S.C. 292
• Decision Date: 10 February 1994
• Docket Number: No. 2160,2160
• Parties: SOUTH CAROLINA FEDERAL SAVINGS BANK (Now Known as First Union National Bank of South Carolina), Appellant, v. ATLANTIC LAND TITLE COMPANY, INC., The Treasurer of Beaufort County, The Beaufort County Tax Auditor and Beaufort County Tax Assessor, Respondents. . Heard
• Court: Court of Appeals of South Carolina

Page 630

442 S.E.2d 630

314 S.C. 292

SOUTH CAROLINA FEDERAL SAVINGS BANK (Now Known as First Union National Bank of South Carolina), Appellant, v. ATLANTIC LAND TITLE COMPANY, INC., The Treasurer of Beaufort County, The Beaufort County Tax Auditor and Beaufort County Tax Assessor, Respondents.

No. 2160.

Court of Appeals of South Carolina.

Heard Feb. 10, 1994.

Decided March 21, 1994.

Marvin H. Dukes, III of Dukes, Williams, Infinger & Meeks, Beaufort, for appellant.

J. Ray Westmoreland, Hilton Head Island and Stephen P. Hughes, Beaufort, for respondents.

CURETON, Judge:

South Carolina Federal Savings Bank (South Carolina Federal) brought this action to have a tax deed held by Atlantic Land Title Company, Inc. (Atlantic) declared void on the grounds that Beaufort tax authorities failed to partition the property before sale and failed to provide proper notice to the bank as mortgage holder. The master declared Atlantic had title in fee simple. The bank appeals. We affirm.

This case is one in equity in which this Court may take its own view of the preponderance of the evidence. See Godfrey v. Webb, 277 S.C. 246, 285 S.E.2d 883 (1982) (suit to set aside a tax deed is in equity); Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773 (1976) (in equity case appellate court may take its own view of the preponderance of the evidence).

The property in question consists of .43 acres of commercial property on Highway Twenty-One, adjacent to the marshes of Albergotti Creek. The property at one time was part of a larger tract, which was divided into lots in November, 1956. The property is comprised of lot forty-nine and part of lot forty-eight. The property has been taxed as one tract.

In January, 1987 the bank received a mortgage on the subject property to secure a $28,000 loan it made. In May, 1989, the bank brought an action to foreclose the mortgage. ¹ At that time, the 1988 real estate taxes were also delinquent, and the property was sold to Atlantic at public auction October 2, 1989 for $1,750 to satisfy a tax debt of $1,539.60. During the statutory one year redemption period, notice was sent to the bank, as mortgage holder, of its right to redeem the property. The bank failed to redeem the property, however, and a deed was issued to Atlantic.

The bank then sought to set aside the tax deed on the bases the treasurer (1) failed to partition the property prior to sale; and (2) failed to provide the bank proper statutory notice.

The bank maintains the property should have been divided, with only the portion of the property in lot forty-eight being sold to satisfy the tax debt. The bank offered expert valuation testimony to establish that the lot forty-eight portion of the property was worth $13,750. Other evidence, however, suggested that portion of the property alone was virtually worthless.

The bank acknowledged receipt of the redemption notice sent by certified mail, return receipt requested, but cited the statutory requirement at that time that such notice be forwarded by registered mail, not certified mail. ²

The master found no excessive levy. He found the portion of lot forty-eight alone was almost valueless, save for its marsh view, and disbelieved the expert appraisal. The master noted that the entire property brought only $1,750, and determined the treasurer had no duty to partition the two lots and sell only the portion of lot forty-eight.

The master also found that although notice was sent by certified mail, return receipt requested, rather than by registered mail, the bank signed the return receipt card acknowledging actual receipt of the notice. Therefore, the master determined the bank received sufficient notice.

I.

On appeal, the bank argues that notice by certified mail did not comply with the statutory requirement of notice by registered mail. The bank concedes it received notice, but maintains strict construction of the taxing statute renders the notice defective. We disagree.

Statutory requirements protecting against tax sale forfeiture of real property are strictly construed, and statutory notice requirements may not be circumvented simply by establishing actual notice of a tax sale. See Aldridge v. Rutledge, 269 S.C. 475, 238 S.E.2d 165 (1977) (failure to provide notice to true owner is not excused, regardless of actual notice); Donohue v. Ward, 298 S.C. 75, 378 S.E.2d 261 (Ct.App.1989) (failure to give twenty day notice fatal to sale and delivery of tax deed despite a lack of prejudice to true owner).

Nonetheless, we distinguish the present case from Aldridge and Donohue. In those cases, the parties received notice that was inferior to the statutory notice requirements. Here, the bank received notice by certified mail ³, return receipt requested, which provides safeguards greater than those of notice by registered mail. ⁴ Although registered mail provides additional safeguards as to the post office's handling of the mail, certified mail, return receipt requested, provides greater safeguards as to actual receipt by the mortgagee. With registered mail, delivery is ensured to a certain address. With certified mail, return receipt requested, not only is delivery to a certain address ensured but also receipt for the mail is ensured.

We hold that where, as here, notice of a tax sale exceeds the statutory notice requirements, the tax deed may not be set aside on the basis of insufficient notice.

II.

The bank also argues the master erred in finding the taxing authority had no duty to partition the property before sale, and in finding the treasurer did not exact an excessive levy. We disagree.

Section 12-51-40 permits the levy only of "so much of the defaulting taxpayer's estate ... as may be sufficient to satisfy the taxes, assessments, penalties, and costs" in the execution. S.C.Code Ann. § 12-51-40 (Supp.1993).

The question of excessiveness, however, is one of fact. Southern Region Indus. Realty, Inc. v. Timmerman, 285 S.C. 142, 328 S.E.2d 128 (Ct.App.1985). Although we recognize that in equity cases we may make our own findings of fact based on the preponderance of the evidence, we are not required to disregard the findings of the master who saw and heard the witnesses and was in a better position to judge their credibility. See Costa And Sons...