Marine Wharf & Storage Co. v. Parsons

26 S.E. 956, 49 S.C. 136, 1897 S.C. LEXIS 137

• Court: Supreme Court of South Carolina
• Decided: April 1, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Jones.

This is a suit for the foreclosure of a mortgage of real estate executed by defendant to plaintiff, 17th July, 1895, to secure a bond of same date, for the purchase money, conditioned to pay a certain sum, with specified interest, five years from its date, or as soon before that time as the title to the mortgaged premises shall by a court of competent jurisdiction be held or made good so far as an alleged defect alone is concerned. Suit was commenced in November, 1895. The alleged defect is set forth in the bond, as follows: “That in the case of G. S. Holmes, administrator, v. Zanoguera et al., filed and of record in the Court of Common Pleas for Charleston County, in which suit jpaid lot 55 (the mortgaged premises) was sold, the proof of service upon certain minor defendants was made by the affidavit of Miguel Sbest, the person serving said minors, before a consular agent of the United States in the island of Majorca, Kingdom of Spain, which said affidavit is alleged to be defective, and not taken before the proper officer.” The complaint, after the usual allegations in such cases, further alleged, that the alleged defect does not, and never did, affect the validity of the title to the said property; but that, in order to further assure and remove all questions from the same, the plaintiff obtained from said Zanoguera heirs, on the 30th July, 1895, an affidavit, before the United States consular agent in Majorca, Spain, to the effect that the service had actually been tnadé by the said Miguel Sbest (since deceased), as set out in the former affidavit of said Sbest, in the case of Holmes, administrator, v. Zanoguera, in 1875, and that said affidavit of 30th July, 1895, had been forthwith filed in the records of said cause, nunc pro ttmc, as further proof of service. The complaint further alleged that, in order to still further remove all shadow of the alleged defect from said title, the plaintiff filed, in the Common Pleas Court for Charleston County, summons and complaint against the heirs at law of Sebastian Zanoguera, wherein it referred to the suit of Holmes, administrator, v. Zanoguera, and the alleged irregularity in the proof of service, and prayed the Court to declare the said proceedings and proof of service regular and valid, and ño cloud on the title of this plaintiff, or else confirm the said former proceedings. That on the 7th day of September, 1895, Judge O. W. Buchanan therein decreed the proceedings in the case of Holmes, administrator, v. Zanoguera to have been valid and binding, and further confirmed and ratified them in all respects, and vested and validated in plaintiff the title to the property in question, and that said judgment stands of force and unappealed from. The complaint then alleged that the title to the mortgaged property has been by a court of competent jurisdiction held and made good, so far as the alleged defect referred to in said bond is concerned, and that the Court should declare the condition of said bond and mortgage broken. To this end, the complaint prayed, and for foreclosure. The answer denies that the condition of said bond has been broken, and alleges that the matters referred to in said bond did and do affect the validity of the title to the said premises; that in the chain of title is a conveyance of said premises by A. J. White to Sebastian Zanoguera, dated 27th March, 1872; that under proceedings for settlement of the estate of said Sebastian Zanoguera, the said premises were conveyed by the sheriff of Charleston County to Robert Hunter, January 6th, 1876; that on settlement of the estate of Robert Hunter, said premises were conveyed by a master of said Court to the plaintiff, July 31st, 1890, and that on 17th July, 1895, plaintiff conveyed same to defendant; that in said proceedings for settlement of the estate of Sebastian Zanoguera, who died intestate, his widow and seven minor children were named as parties, but there is no proof of the service of the summons on the said infant defendants, who were then aged about one, three, four, six, nine, thirteen, and sixteen years, respectively, except an affidavit of service before a United States consul, or agent, asset out in the bond annexed to the complaint. As to the affidavit of 30th July, 1895, the answer admitted that such an affidavit was obtained from some of the heirs of said Sebastian Zanoguera, but alleged that some of the heirs, - Maria, Antonio, and Miguel, did not sign the affidavit; and alleged, on information and belief, that Maria and Antonio are dead, and that Juanna, who did sign the affidavit, was then under twenty-one years of age. As to the proceeding in the case of Marine Wharf and Storage Company v. Catalina Zanoguera and others, in 1895, referred to in the complaint, the answer alleged that at that time the said Maria was dead, having died in April, 1890, leaving as her heirs her husband and a child now about six years old, and that these heirs were not parties to said proceedings. Plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense. His Honor, Judge Benet, hearing the cause, sustained the demurrer, and made decree for foreclosure. This decree, and the grounds of appeal therefrom, will be found set out in the report of this case.

1 The exceptions, in ultimate analysis, raise in general one controlling question, viz: whether the condition of said bond had been broken at the time of the commencement of this action? As shown by the terms of the bond it was payable (1) within five years from its date, (2) or as soon before that time as the title to said premises shall, by a court of competent jurisdiction, be held or made good so far as the alleged defect alone is concerned. The action having been commenced within the five years, it remains to ascertain if a court of competent jurisdiction had, previous to the commencement of this action, held or made good said title. The record in the case of The Marine Wharf and Storage Company v. Catalina Zanoguera, the elder, Catalina Zanoguera, the younger, Elvina Zanoguera, Mary Zanoguera, Antonio Zanoguera, Madelina Zanoguera, Miguel Zanoguera, and Juanna Minie Zanoguera, was made a part of the complaint, and was not questioned by defendant, except as hereinafter noticed, and shows on its face that the summons and complaint therein were duly and legally served by publication, and due proof of same made. The Court of Common Pleas for the county of Charleston having power to hear and determine such a cause, having jurisdiction over the subject matter, and complying fully with the statute as to service of summons by publication, was a court of competent jurisdiction. By its judgment, September 7th, 1895, it'declared the proceedings in the said cause of Holmes, adm’r, v. Zanoguera “to have been valid and binding," and proceeded further to confirm and ratify the same in all respects, and declared the title to the property in question to be vested and validated in the plaintiff, &c. Defendant’s title to the premises, as grantee of the plaintiff, was, therefore, held good on the 7th September, 1895, by a court of competent jurisdiction, when by its terms the bond became payable.

2 3 So far as the question before us is concerned, it makes no difference that it appears de hors the record that two of the Zanoguera heirs, Maria and Antonio, were dead at the time of the proceedings in 1895, Maria leaving a husband and infant child, who were not parties thereto; nor is it material that Juanna was under twenty-one years of age on the 30th July, 1895, .when the affidavit was signed. It does not appear that she was not twenty-one years old at the commencement of the proceedings later in 1895, and the presumption is that she was. The judgment of Judge Buchanan, 7th September, 1895, was regular on its face. Nothing whatever appears in the record to impeach it. It is not void, and cannot be assailed collaterally, especially by defendant. Darby v. Shannon, 19 S. C., 526; Hunter v. Ruff, 47 S. C., 525. In reaching the conclusion that the proceedings, including the proof of service, on all the Zanoguera heirs, in the case of Holmes, adm’r, v. Zanoguera, to have been valid and binding, Judge Buchanan must have decided that the proof of service of the summons and complaint on the Zano-guera heirs, October 6, 1875, by the affidavit of Miguel Sbest before Ernesto Canut, United States consular agent, was a compliance with the statute, or that the proof of service was a mere irregularity, which was cured by the affidavit of July 30, 1895, filed with the record. In either view, his judgment was the judgment of a court of competent jurisdiction holding the title in question to be good. This being so, the bond became payable on the filing of this judgment.

Having reached this conclusion, we think it quite unnecessary to consider the other matters so ably and satisfactorily discussed in the opinion of Judge Benet.

4 We concur fully with the Circuit Court that the proceedings in the case of Holmes, adm’r, v. Zanoguera et al. were regular, valid, and binding on all the minor defendants therein. It will be observed that the bond itself and' the pleadings assume as true that Ernesto Canut was a consular agent of the United States in Majorca, Spain. The alleged defect was that Ernesto Canut, though United States consul, was not authorized to administer the oath to the affidavit of Miguel Sbest, who served the minors. The Code, sec. 158, as it stood at that time, required that, in addition to publication, in the case of minors who could not be found within the State, service of summons and complaint should be made by delivering a copy thereof to the minor personally, and'if under the age of fourteen years also to his or her father, mother or guardian, &c. It further provided that proof of such personal service shall be made by affidavit of the party delivering the copy summons and complaint, properly/authenticated. An affidavit is defined in Am. & Eng. Ene. Law, vol. 1, p. 307, to be, “A formal written (or printed) voluntary ex parte statement, sworn (or affirmed) to before an officer authorized to take it, to be used in legal proceedings.” Unless a statute or rule of court otherwise requires, any one authorized to administer an oath may take an affidavit. Ib., p. 309. In the absence of some statute or rule of court providing otherwise, proof of service on a non-resident majj- be made by affidavit taken before any officer qualified by law to take affidavits where the affidavit is made. The officer’s signature and seal is a sufficient anthentication unless some statute or rule of court requires further authentication. In this case, the affidavit contains all the requisites of an affidavit properly authenticated if Ernesto Canut, conceded to have been at the time a United States consul at Majorca, Spain, was qualified to administer such oath. That he was so qualified under the laws of the United States is shown in Rev. Stat. U. S., ed. 1878, p. 311, wherein every consular agent is “authorized to administer to or take from any person any oath, affirmation, affidavit or deposition, and to perform any notarial act which any notary public is required or authorized by law to do within the United States. Every such oath, affirmation, affidavit, deposition, and notarial act, administered, sworn, affirmed, taken out or done by or before any such officer, when certified under his hand and seal of office, shall be as valid and of like force and effect within the United States, to all intents and purposes, as if administered, sworn, affirmed, taken out or done by or before any other person within the United States duly authorized and competent thereto.” This act was passed in 1856; was, therefore, in force when the provisions of the Codeas to proof of service on non-residents was adopted, and we must assume the legislature had in mind the right of a United States consul to take an affidavit when this provision was adopted. In 1884,. sec. 159 of the Code was amended, giving more specific directions as to the proof of service of process when made out of the State; and it is therein provided, “If (the service) is made without the limits of the United States (proof thereof may be made) before a consul or vice-consul or consular agent of the United States, who shall use in his certificate his official seal.”

The case of Woolfolk v. Graniteville Mfg. Co., 22 S. C., 337, cited in behalf of appellant, is not in conflict with the view here announced. In that case it was held that under our registry laws in force in 1820, a deed executed in South Carolina, and proved before a magistrate in Georgia, was not properly probated for record, because the act required such a deed to be probated “before a Judge of the Supreme Court, or a magistrate out of the Court.” The Court held that these words “meant officers of this State, commissioned by this State, and acting within this State.” In the case at bar, no officer was specified as the person who should take the affidavit.

If the proceedings in 1875 were not defective, it becomes tinnecessary to consider what curative effect subsequent proceedings have thereon.

The judgment of the Circuit Court is affirmed.