Smith v. Winn

17 S.E. 717, 38 S.C. 188, 1893 S.C. LEXIS 96

• Court: Supreme Court of South Carolina
• Decided: April 24, 1893
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Chief Justice McIver.

1 After a most careful consideration of this case, stimulated by an anxious desire to relieve the appellant, Charles E. Long, from what seems likely to prove a most improvident purchase, I must confess that I am unable to perceive how such relief can be afforded consistently with well settled principles of law. The appellant was a party to the action under which the sale was made, from which he is now seeking to be relieved. He knew, or ought to have known, that, by his purchase, he could only acquire the title of those who were parties to the action; and if it was necessary that other parties should have been brought in, for the purpose of obtaining a good title for the land which he, with other parties to the action, had induced the court to order the sale of, he could have had such additional parties brought in, and if he failed to do so, he must be regarded as having offered the amount of his bid for the interests of those who were parties to the action. This case must, therefore, be regarded as another instance of the many in which persons have bought property unadvisedly, without taking the necessary steps to inquire into the title of the property which they buy, and, after the contract of purchase has been fully executed, find that they have not obtained what they thought they were buying.

It is earnestly urged, however, that the appellant bought under a mistake of law, caused by the advice of eminent counsel, and is, therefore, entitled to relief. As was said in the case of Munro v. Long, 35 S. C., 354, when this same question was before this court in a different form: “Without undertaking to go into any discussion of what is called in one of the cases (Norman v. Norman, 26 S. C., 48,) the nice and shadowy distinction between a mistake of law and ignorance of law, it is sufficient for us to say, that there was no such mistake of law, even under the cases which have gone to the extreme in that direction, as would relieve the defendant. The mistake claimed to have been made was either in the construction of the will, or in supposing that the rights of the contingent remaindermen would be barred by the order of sale made in a cause to which they were not made parties. If the former, it is very obvious, from the cases of Keitt v. Andrews, 4 Rich. Eq., 349, and Ouningham v. Ouningham, 20 S. C., 317, that such a so-called ‘mistake’ would not be sufficient; for, as said by Dargan, Oh., in his Circuit decree in Keitt v. Andrews, supra, adopted by the Court of Appeals, a misconstruction of a will ‘is rather an error of the judgment than a mistake either of the law or fact.’ If, however, the mistake really relied upon (as seems to be the fact from appellant’s argument here) was in supposing that the contingent remaindermen were not necessary parties, that, upon the same principle, would not be sufficient.”

This language is not cited as decisive of this appeal, inasmuch as the court, in Munro v. Long, expressly declined to decide the question as to the right of appellant to relief in the case in which the order of sale was made; but it is cited for the purpose of showing that the appellant is not eutitled to relief upon the ground of a mistake of law. But I am unable to perceive upon what principle of law the appellant can obtain relief, even under the case in which the order of sale was made. Even a third person, who becomes a purchaser at a judicial sale, is bound to inquire whether all necessary parties were before the court when the order of sale is made. (Trapier v. Waldo, 16 S. C., 282); and if so, much more is it the duty of a purchaser who was originally a party to the proceedings. This being so, the appellant must be regarded as having bought only the interests of the parties who were before the court; and he cannot now, after his contract of purchase has been fully executed, require that other parties [be brought in], who, in a con tingency which has not yet occurred, may at some future day have an interest in the property.

2 But in addition to this default on the part of the appellant, in failing to have the proper parties brought before the court, it appears from the proceedings set out in the “Case” that the appellant has been guilty of another default. When the referee made his report of the 11th of March, 1889, ascertaining the amounts due to each of the parties to this cause, it was excepted to, and his honor, Judge Fraser, made an order recommiting the cause to the referee, and directing him to restate the accounts, “and that he take an account of the entire estate of William Long, including the share set apart to Miriam Long, the life tenant; * * * that in taking said account he include, also, the lands sold by the master after the death of said Miriam Long, so as to show the true amount due to each legatee and devisee under the will of William Long, deceased.” To this order there was no exception and from it there was no appeal, and hence it must stand as the law of this case; In other words, it was an adjudication, not accepted to and not appealed from, that the proceeds of the sale from which the appellant now seeks relief, should be distributed amongst those who were then parties to the action. In view of these repeated defaults on the part of the appellant, Charles B. Long, I am unable to perceive how he can obtain the relief he seeks, without utterly disregarding well settled principles of law.

3 In reference to the exception as to the commissions of the executor, I concur iu the views presented in the opinion of Mr. Justice Pope, and do not deem it necessary to add anything to what he has said.

It seems to me, therefore, that the judgment of the Circuit Court should be affirmed; and this being the opinion of the majority of this court, the judgment of this court is that the judgment of the Circuit Court be affirmed.