Adickes v. Lowry

12 S.C. 97, 1879 S.C. LEXIS 42

• Court: Supreme Court of South Carolina
• Decided: June 19, 1879
• Docket: CASE No. 741
• Status: Published

Opinion

The opinion of the court was delivered by

Haskell, A. J.

This is an action brought to recover certain lands, with damages for the detention thereof. The land was levied on as the property of J. R. Bratton, and sold by the sheriff on sale-day in December, 1873, under and by virtue of executions then in his office against the business firm of Allison & Bratton, of which J. R. Bratton was a member, and was bid in by J. T. Lowry, one of the respondents, who failed fully to comply with the terms of the sale, and received no title from the sheriff. It appears that Lowry was in possession at the time of the sale. The land' was advertised by the sheriff for re-sale on the succeeding sale-day in January, 1874, but the sale was prevented by orders of the court restraining further proceedings against the property of J. R. Bratton until the assets of Allison & Bratton had been exhausted. It is further shown, in the case as made, that the assets of the firm were exhausted by sale in April, 1874, and that on sale-day in June, 1875, the land was re-sold by the sheriff “ at the risk of the former purchaser, and bid off by the plaintiffs for $1000, which they paid,” and that they received a title deed from the sheriff, on which title the appellants rely. The defence claims possession by J. T. Lowry under a deed from J. R. Bratton “prior to said sale,” and further denies that there was “ any valid sale by the sheriff,” upon the grounds: 1. That the premises were the individual property of J. R. Bratton, and that he had never been served with process in the suits under which the land was sold; and second, that no valid levies liad ever been made by the sheriff under the executions in his office, and that the sale by him was without authority of law., There was evidence to show that there was in the sheriff’s office, prior to the first sale, an execution in the case of Hugh Galloway v. J. R. Bratton, judgment bearing date January 15th, 1871, and that no levy was ever endorsed on said execution. That there were also in the sheriff’s office, at the time of the first sale, executions issued upon judgments, of title and date as follows, viz.: Schieffelin & Co. v. Allison & Bratton, May 22d, 1872, execution issued and lodged same day; Dowie, Moise & Davis v. Same, July 28th, 1873; L. M. Crist v. Same, July 28th, 1873; McGill et al., administrators, v. Same, September 30th, 1873. Executions in the last three oases Avere issued and lodged in each on the same day that the judgment was entered up. It was also in proof that subsequently to the first sale, but prior to the re-sale, that is, on the 11th of February, 1874, and on the 14th of February, 1874, judgments Avere entered up, one in favor of Agnes B. Harris v. J. B. Bratton et al., execution issued and lodged 14th of February, 1874, and another in favor of H. F. Adickes v. Addison & Bratton. And that levies Avere made on the said land by the sheriff, and certified copy of each levy and execution filed in the cases, and at the dates as follows, viz.: L. M. Grist v. Allison & Bratton, September 22d, 1873; Dowie, Moise & Davis v. Same, September 22d, 1873; Schieffelin & Co. v. Same, November 5th, 1873; McGill and others v. Same, November 5th, 1873. At the time when each of these four judgments was obtained a judgment did not of itself constitute a lien upon real estate. Code, § 313, Gen. Stat. 643. Such lien, however, might be created by a levy made by virtue of an execution issued to enforce the judgment, and by the filing of a certified copy of the execution, with proper certificate thereon, in the office of the register of mesne conveyance. Code, § 314. It is in proof that in the four cases last above-named such proceedings were properly had, and that in at least three of the cases the sixty days, Avithin which the original executions were returnable, had not expired at the time the levy Avas made, and that as to one of them, the execution held by McGill et al. v. Allison & Bratton, the sixty days had not expired on November 25th, 1873, which date, it Avill be seen, has important bearing upon the point involved. It is plain from the statement thus presented that there was evidence to show that at the time of the sale, on sale-day in December, 1873, there AA'ere three executions in the sheriff’s office Avhich had been leAÚed Avithin the time in which they were returnable, and that according to law (Code, § 314,) the lien attached to the land for one hundred and twenty days subsequent to the date of filing the proper certificates, and one hundred and twenty days after the removal of prior encumbrances. But on November 25th, 1873, an act entitled “ An act to alter and amend the code of procedure, being Title V., Part III., of the General Statutes,” (15 StaL 495,) became law. See Arnold v. McKellar, 9 S. C. 335. By Section 14 of said act, it is provided that “final judgments hereafter (after November 25th, 1873,) entered in any court of record in this state, shall constitute a lien upon the real estate of the judgment-debtor in the county where the same are entered, for a period of ten years.” It is further provided that “where any judgment has been obtained and execution issued since the first day of March, a. d. 1870, and the said judgment or execution has now [November 25th, 1873,] a lien by reason of a levy in accordance with the provisions of the code of procedure, then the lien of such judgment or execution shall date from the day upon which it became a lien under said code of procedure,” and, as to real estate, endures for ten years from that time. The leading purpose of Section 14 is to make a judgment a lien upon real estate for ten years from the time the judgment is entered up. As to cases, however, where judgments had come into existence between March 1st, 1870, and November 25th, 1873, and such judgments had not acquired a lien according to law, the mode by which lien may be acquired and the period from which the lien is to run are both provided for. But in cases where the judgment had acquired a lien under the code for a period limited by the one hundred and twenty days rule, the provision above cited does nothing more than fix the time from which the extended or ten-years lien shall run, and requires no summons or other proceedings to show cause why it should not become a lien, from the fact that the lien had already been acquired. Executions, also, under the act of 1873, (15' Stat. 495,) cease to be returnable within sixty days, and retain their active energy “ until the regular term of the court from which they were sued, which shall follow next after the full completion of five years from its lodgment.” It is thus obvious that three such judgments as those above cited might have constituted a lien upon the land for ten years after the times at which they respectively acquired lien under the code of procedure. The two other judgments offered in evidence, viz., Agnes B. Harris v. Bratton, and Adickes v. Allison & Bratton, having been entered up subsequently to the adoption of the act of November 25th, 1873, would unquestionably constitute a lien upon the property. Thus, there being evidence of the existence of such judgments and executions, it was manifestly error to instruct the jury “ that the right to sell under the executions depended upon the lien of the executions, and that said lien hád expired before the second sale.” The fact is that the whole trial was conducted upon the assumption, on all sides, that the act of 1873, above cited, was not of legal force, and that its provisions did not go into effect until the 8th of March, 1875, at which time they were re-enacted; but, as already said, this court held otherwise in Arnold v. McKellar, supra. The judgment lien fixed by the act of 1873 disposes of most of the questions of law contained in the exceptions of the charge of the judge, and it is unnecessary that they should be further considered.

There remain, therefore, only two questions to be disposed of.

1. Whether the defendants had any right to attack the judgments under which the sale was made, on the ground that J. B. Bratton, the judgment debtor, was not personally served with the summons. The defendants are, in no sense, parties to the judgment. The general doctrine is thus briefly stated: “ Third persons may sometimes have a judgment vacated on the ground that it is collusive, or that the cause of action on which it is based was fictitious, but they are not allowed to take advantage of errors or irregularities of proceeding.” Freem. on Judg., § 91. In Barkley v. Screven, 1 N. & McC. 408, it was held that the purchaser of real estate at sheriff’s sale could rest his title upon the judgment and execution. “ The purchaser,” says the court, “ is not required to look into the regularity of the proceedings. The seal of the court is evidence enough for him. Nor can objections of this nature be made by third persons if the proceedings were clearly irregular.” The same is held in Guignard v. Glover, Harp. 457, and in Henry v. Ferguson, 1 Bail. 512. The defendant, Lowry, sets up for a defence that the service of summons on Bratton was accepted by Bratton, per J. F. Lowry, (the defendant,) and that he, the defendant, was not duly authorized to thus accept service. Henry v. Ferguson is exactly in point and is conclusive/ Admitting that Lowry had not full authority at the' time he accepted the service, nevertheless Bratton has never objected, and, certainly, Lowry cannot, at law or in equity, avail himself of his own wrong. The defence is inadmissible, •and should not have been allowed to stand.

2. Whether the judge erred in his instruction to the jury— “ That if the defendant, Lowry, Was holding the land at the time •of the first sale under a contract to purchase from Bratton, then that the land could not be sold as Bratton’s property.” The judge further submitted to the jury to decide whether such sale to Lowry was “ for the purpose of hindering, delaying or defrauding creditors.” The law, as announced by the Circuit judge, is sustained by the case of Massey v. Mallwain, 2 Hill Ch. 421, which is a leading authority on the subject. It is proper, however, to remark that the conclusion reached on the point by the Circuit judge should be regarded in the light rather of a judgment than of an instruction to the jury. Such defence is equitable in its nature and belongs to that side of the court which exercises the chancery jurisdiction. Under the former practice such defence could not have been set up in the action at law to try the title and recover possession. The defendant would have ■been obliged to file his bill in equity to restrain proceedings at law, and to seek such other relief as in equity he might have a right to demand. Under the code of procedure all this may be •effected by the pleadings in a single action, and new parties, if necessary, may be brought in; but, at the trial, the legal and the •equitable issues must be distinguished and decided by the court in the exercise of its distinct functions as a court of law and a •court of equity, and only those should be determined by a jury which are properly triable by jury, while those which would formerly have been properly triable in equity must be determined by the judge in the exercise of his chanceiy power. In the latter class, when questions of fact are submitted to the jury, •the purpose can only be to enlighten the understanding of the judge by giving him the aid of a verdict, but the verdict is not-binding, and may be totally disregarded by the judge in arriving-at his final determination.

The question of the admissibility of certain deeds in evidence is rendered immaterial by the decision as to the lien of the judgments, and as to the right of the defendant to assail judgments to which he is not a party. The right of the sheriff to re-sell cannot be disputed after the.lien of the judgments is admitted* and whether the re-sale could be at the risk of the former purchaser is not made a question.

Having thus disposed of the material questions raised, the-case is remanded for a new trial, attention being.called to the manner in which the equity portion of the case should be tried..

Motion granted.

"Willard, C. J., and McIver, A. J., concurred.