Breazeale v. Roach

95 S.E. 127, 109 S.C. 11, 1918 S.C. LEXIS 175

• Court: Supreme Court of South Carolina
• Decided: January 24, 1918
• Docket: 9875
• Status: Published

Opinion

Tlie opinion of the Court was delivered by

Mr. Justice Gage.

Appeal from an order of the Circuit Court made upon a special proceeding, and arising out of these circumstances. Roach recovered a judgment at law against Mrs. Watson, a married woman, and alleged to be the head of a family. Execution was issued on the judgment, and the land of Mrs. Watson was sold to satisfy the judgment. Breazeale and Shirley bid, and the land was knocked down to them. They declined to pay the bid and take title, because (1) they said the sheriff was' without power to sell the homestead, and they got no title; and (2) because they said there were incumbrances on the title. The Circuit Court made an order and held (1) that Mrs. Watson was not the head of a family and was not entitled to homestead; (2) that the bidders bought with reference to incumbrances at their peril, and whether they got unincumbered title is irrelevant; (3) that the bidders should pay their bid, and out of the purchase money the costs should be first paid, and the Roach Judgment debt and the balance should be paid to Mrs. Watson. These conclusions the appellants question, and they make one other issue which the Court did not expressly decide, and that is, the liability of the purchase money when paid in to satisfy a mortgage held by the Westminster Bank in the land, and a certain attachment lien on it. Ret the Circuit order and the exceptions be reported.

We think the controversy does not necessarily involve any issue of homestead; for if the bidders bought the title at their peril (caveat emptor, as it is called), then there is no need to inquire if the title was immune from sale because it was a homestead.

1 The law is well settled, and has been for a century, that ordinarily after a person at an execution sale has bid off the property sold, it is too late for him to question the title; he must comply with his bid. Davis v. Murray, 2 Mill. Const. 143, 12 Am. Dec. 661; Wingo v. Brown, 14 Rich. 106; Long v. McKissick, 50 S. C. 218, 27 S. E. 636; Norman v. Norman, 26 S. C. 41, 11 S. E. 1096. The rule is modified where the sale is had pursuant to an order of a Court of equity. Bank v. Bramlett, 58 S. C. 477, 36 S. E. 912, 79 Am. St. Rep. 855. If this seems to be an artificial difference, it is now too well fixed in the jurisprudence of the State to be changed by us. The judgment of the Circuit Court, therefore, that Breazeale and Shirley must take such title as passed and pay the price is right. We pronounce no opinion upon whether Mrs. Watson’s title passed to the purchasers.

This leaves one other issue to be decided, if indeed there be another real issue in the case.

2 For what we have said about insufficient title applies to the alleged incumbrances on the title. The record does not disclose with any sort of particularity the character of the liens referred to. It only appears from the record, in the “statement” of the “case” (1) that there was at the date of the execution sale a mortgage for $437.20 on the land by Mrs. Watson to the Westminster Bank; and (2) that there was also then existent “a lien upon the said tract of land of an attachment levied by the sheriff of Oconee county in a suit of the Westminster Bank v. Mrs. Watson." When the purchaser bought the title incumbered by a mortgage, he took it under like circumstances and legal effect as if he had bought a horse which was unsound; the title was infected by the cancer of debt, and the buyer took it in that plight. Davis v. Murray; Norman v. Norman, before cited. To permit the purchaser to apply the purchase price to remove the mortgage incumbrance would be to undo the consequences of the rule of caveat emptor.

The reference in the record to the attachment lien is so insufficient that no conclusion may be drawn from it.

3 The direction by the Circuit Court as to the payment of costs was surplusage; they followed'the execution sale and the event of rule to show cause.