Trapier v. Waldo

• Decision Date: 19 November 1881
• Docket Number: CASE No. 1117.
• Citation: 16 S.C. 276
• Court: South Carolina Supreme Court
• Parties: TRAPIER v. WALDO.

16 S.C. 276

TRAPIER

v.WALDO.

CASE No. 1117.

Supreme Court of South Carolina.

Nov. 19th, 1881.

1. It is the policy of the courts to sustain a judicial sale when it can be done without violating legal principles or inflicting injury, but it will not be confirmed against the objections of a purchaser, where the title is bad or of doubtful validity.

2. A purchaser at a judicial sale is not affected by irregularities in the proceedings under which the sale was made, if the court had jurisdiction of the subject-matter and all proper parties were before it; and this rule applies as well to cases in which the purchaser objects to the title tendered, as where he defends his purchase. Bulow v. Witte, 3 S. C. 323, approved.

3. An action for foreclosure of mortgage of lands, lying in Georgetown county, was instituted in the Court of Common Pleas for Charleston county, in October, 1879, and no demand was made by the defendants for a change of the place of trial. Held, that the court in Charleston, under the first paragraph of Section 149 of the Code of Procedure, had jurisdiction of the action, and such jurisdiction having attached, it was not affected by the repeal of this paragraph in December, 1879, before the hearing.

4. But as to parties brought in by amendment after such repeal, one of whom was an infant, and the other—an adult—did not appear, the court in Charleston was without jurisdiction, for at that time the requirement of the law was that the action must be tried in the county where the lands lay. As to these parties, the order of foreclosure and sale was void.

5. In an action for foreclosure of mortgage of land, the personal representative of the mortgagor, who was dead, was not made a party, although the complaint demanded judgment for deficiency, if any. Held, that this nonjoinder could not be urged by the purchaser at the foreclosure sale, as an objection to the validity of the sale.

6. The administrator of a deceased heir-at-law of such mortgagor was not a proper party to the action.

7. Under the express authority conferred upon the Probate judge by Section 138 of the Code of Procedure, he may appoint a guardian ad litem to appear for infants who are parties to a cause in the Court of Common Pleas.

Before MACKEY, J., Charleston, April, 1881.

The opinion fully states the case.

Messrs. W. St. J. Jervey, G. R. Walker, Rutledge & Young, C. R. Miles and T. W. Bacot, for appellants.

Messrs. Simonton & Barker, contra.

The opinion of the court was delivered by

MCGOWAN, A. J.

Under proceedings in the case of Trapier v. Trapier, a rice plantation in Georgetown county, known as Windsor, was sold by order of court in 1870, and purchased by Mrs. Sarah C. H. Waldo, of New York, for $21,500, for which she gave five bonds, each for the sum of $4,300, and to secure the same, executed a mortgage of “that plantation or tract of land known as Windsor, on Black river, Georgetown county,” consisting of several parcels, particularly described. The said Sarah died about 1873, leaving a paper purporting to be her last will and testament, executed in the State of New York, by which she undertook to devise Windsor to Horace Waldo and Francis Waldo, the latter of whom soon after died in New York, leaving as his heirs-at-law, his widow, Gertrude, and her infant son, Rhinelander Waldo, and two minor children by a former marriage, viz., Rosalie L. and Katherine L. Waldo. Horace Waldo was named executor of the will of the said Sarah. He qualified in the State of New York, and assumed to act as sole executor, but the will was never lodged or proved in South Carolina, for the reason, as stated, that it was not executed in the presence of three witnesses, and, therefore, was not effective as a will in this State.

The bonds, secured by the mortgage aforesaid, were assigned, and are owned by different parties—one by Mrs. Charlotte T. Trapier, one by Benjamin F. Trapier, one by Richard S. Trapier, one by Hannah H. Jervey, wife of Arthur P. Jervey, and the remaining one by the plaintiff, Alicia S. Trapier, who instituted these proceedings to foreclose the mortgage. Without objection, the complaint was filed in Charleston county, October 13th, 1879, and, besides the owners of the other bonds named above, and the tenant in possession, the following persons were made defendants, viz., Horace Waldo, as heir, and as executor of the will of Sarah C. H. Waldo, and Rosalie L. Waldo and Katherine L. Waldo, minor children of the first wife of Frank Waldo, deceased, being heirs-at-law of Sarah C. H. Waldo at the time of her death.

The complaint prayed that the mortgage be foreclosed by sale of the land, “and the proceeds applied to the payment of the debt, and execution awarded for the balance, if any.” Notice of lis pendens was filed in Charleston and Georgetown counties, which described the land and stated that the action was for foreclosure of mortgage, &c. To this complaint, Horace Waldo answered, both as executor and heir, November 8th, 1879. On the same day, Laurens N. Chisolm was appointed by the Probate judge of Charleston county, guardian ad litem of the infant defendants, Rosalie L. and Katherine L. Waldo, and, as such guardian, answered.

On February 2d, 1880, leave was given to amend the complaint, and May 19th, 1880, an amended complaint was filed, making Mrs. Gertrude Waldo, the widow of Frank Waldo, and Rhinelander Waldo, her infant son, residents of the State of New York, defendants, which amended summons and complaint were duly served upon the said defendants on June 1st, 1880, under an order of publication of May 29th, 1880. No new notice of lis pendens, after amendment, was filed. Under a general order of reference, by consent of all the counsel engaged, the master made a report recommending that the plantation be sold, and the proceeds held subject to the further order of court, and all questions raised by the pleadings be reserved. July 16th, 1880, Judge Thomson made an order confirming the report, and ordering the land sold on the third Tuesday of December (21st), 1880.

The land was not sold under this order for the reason that Rhinelander Waldo was not represented when the order was made. On December 30th, Judge Wallace appointed W. M. Bruns, guardian ad litem of the infant, Rhinelander. On the next day, December 31st, 1880, Bruns filed his answer as guardian ad litem, and the master reported that the land had not been sold under the order of Judge Thomson because the infant, Rhinelander, was not then represented in the cause, and again recommended that the mortgaged premises be sold, &c.

On January 1st, 1881, Judge Wallace, by consent of all the counsel, confirmed the report and ordered sale. Under this order, Windsor was sold at public auction in the town of Georgetown, on February 1st, 1881, and was knocked down to the respondent, Benjamin Allston, as the highest and last bidder, at the price of $17,800. Judgment by default was taken against Gertrude Waldo on February 21st, 1881, being the first day of the term. The case was not put on calendar 6, and the judgment was not endorsed on the complaint.

After the sale, Mr. Allston went upon the Windsor plantation and employed labor preparatory to planting the same, but soon after he refused to take the land, and the matter was again referred to Master Clancey, and, upon his report, Judge Mackey, February 25th, 1881, issued a rule against Allston to show cause why he did not, as purchaser, comply with the terms of sale. To this rule he made return, refusing compliance, and alleging that for numerous irregularities and violations of law in the proceedings under which the sale was made, “it was impossible for the master to make a legal conveyance of said plantation.” The question thus raised was also referred to Master Clancey, who, after a careful examination, made an able report, stating that, in his opinion, good titles could be made to Mr. Allston, and recommending that the rule should be made absolute. Judge Mackey overruled this report and discharged the rule. From this order the appeal comes to this court upon the following exceptions:

1. Because his Honor erred in holding that the said respondent has shown reasonable grounds of objection to the title which it is the purpose of these proceedings to compel him to take, and that the rule be discharged with his costs allowed him.

2. Because his Honor erred in holding that the sale was void because the action was for the foreclosure of a mortgage of a plantation in Georgetown county, and that it was tried in Charleston county, contrary to the mandate of Section 146 of the Code of Procedure, Gen. Stat. 597.

3. Because his Honor erred in holding that Gertrude Waldo, widow, and Rhinelander, the infant child of Frank Waldo, were not properly before the court when the cause was at issue in July, 1880, or at the time when the account should have been taken and proof had preparatory to a decree for foreclosure and sale, and are not bound by the decree.

4. That his Honor erred in holding that Katherine L. Waldo and Rosalie L. Waldo, the other infant children of Frank Waldo, were not properly made parties to the cause by the appointment of Laurens N. Chisolm as guardian ad litem by the Probate judge of Charleston county, inasmuch as no jurisdiction has been granted by the statute to a Probate judge to appoint guardians ad litem to represent infants in suits pending in the Court of Common Pleas.

5. Because his Honor erred in holding that after order to amend the summons and complaint by making new parties, a new notice of lis pendens should have been filed in the cause, there being, it is submitted, no requirement of law to that effect.

6. That his Honor erred in holding “that this being an action against infants, ordering a sale of their inheritance in land, a reference should have been held to inquire specially whether it was for the interest of the infants or necessary that the land should be sold, and a report thereon...