State ex rel. Harley v. Lancaster

24 S.E. 198, 46 S.C. 282, 1896 S.C. LEXIS 59

• Court: Supreme Court of South Carolina
• Decided: March 21, 1896
• Status: Published

Opinions

The opinion of the court was delivered by

Mr. Justice Pope.

R. H. Harley, having by petition applied to his honor, Judge Watts, at Barnwell, in the Court of Common Pleas, for a writ of mandamus to compel J. W. Lancaster, as sheriff, to execute to him a deed for a certain tract of land, situate in said county and State, containing 540 acres, which he, Harley, claimed he had purchased at sheriff’s sale, and the defendant having answered said rule, Judge Watts issued an order, dated 23d day of August, 1895, denying "such writ. From this order the appellant has appealed. The petition, the answer, and the judge’s order will be reported. The grounds of appeal are as follows:

1. That his honor, the presiding judge, erred in concluding- as matter of law that the mere fact that there was a dispute as to the right of the sheriff to make the deed prayed for in the petition, was sufficient to prevent the issue of a writ of mandamus to compel the sheriff to execute a deed of conveyance to the relator as purchaser at the tax sale mentioned in the petition.

2. That his honor, the presiding judge, erred iu not directing a writ of mandamus to issue, to compel the sheriff to execute the deed of conveyance to the relator as purchaser of the lands mentioned in the petition, because the return of the sheriff fails to state facts sufficient to show cause why he refused to execute said deed.

(a) In that the relator, as purchaser at the tax sale, acquired an inchoate title in the land purchased, by virtue of his bid and its acceptance by the sheriff, which was not forfeited by his failure to comply with his bid on the day of sale, (b) In that payment of the taxes for which the land was sold by a mortgagee after the sale to a purchaser, whose bid has been accepted and the entry of the sale made on the sheriff’s sale book in the name of the purchaser, can have no effect whatever upon said sale, (c) In that the tender made by the relator to the respondent, on the 10th day of August, 1895, of (1) $35.61 in cash, good and lawful money of the United States, $32.35 being the amount due on the said tax execution for all purposes, and $3.25 in full of fee for the title deed and probate of the same, said sums being based upon the calculations made then and there by said sheriff; (2) an order upon the said sheriff to pay over to 3'our petitioner, R. H. Harley, the balance of the bid, that is, $1,867.65, after deducting the amount due on account of said tax execution. This order being signed by the defaulting taxpayer, the said H. M. Duncan, and giving to said R. H. Harley the right to receipt for said balance; and (3) a receipt in full against the said sheriff for the said sum of $1,867.65, on account of the claim of the said H. M. Duncan, defaulting taxpayer, for the said balance, said receipt being signed by your petitioner, by virtue of the said order of the said H. M. Duncan, last aforesaid, was a full and complete compliance with the terms of the relator’s bid at said sale, the defaulting taxpayer having the right to assign the surplus proceeds of sale, after payment of the amount due on account of said tax execution to the relator, to authorize him to receipt to the sheriff therefor, (d) In that it was not necessary for the relator to show the effect of deed, or that it would avail the party seeking it.

1 2 3 4 5 6 We have required the petition and return to be printed in the report of the case, .because the facts underlying the contention are there made manifest. Judge Watts refused the writ, relying upon the case of The State ex rel. Snelling v. Turner, sheriff, 32 S. C., 348, as authority therefor, because he thought there was a dispute as to the right of the sheriff to make the deed, as prayed for in the petition. It is very clear that mandamus will lie to compel the performance of some specific duty imposed by law of a ministerial character, and in which the relator has a legal interest. State ex rel. Gibbs v. Morrison, as sheriff, 22 S. E. R., 605; Morton, Bliss v. Comp. Genl., 4 S. C., 430. In the case at bar, the law of the State devolved the duty upon the sheriff to sell the land in question to pay the taxes due by the owner of the land, and to make title to the purchaser at the sale made by him, upon a compliance by such purchaser with his bid; and thereafter, upon the full satisfaction of such taxes, and the costs and fees incident to the sale, to pay any surplus of the proceeds to the delinquent taxpaper, 19 Stat. at Large, 863, section 2. The sheriff made the sale, and entered the- purchaser’s name as the purchaser in his book of sales. The sheriff could not make the deed on day of sale, but when the purchaser offered to comply, a day or two after the sale, the sheriff refused to make title to the land, alleging that after he had made the sale, and after the hour for official sales had been passed, that the attorney of some bank in Charleston claimed to hold a mortgage on the land sold, came to him and paid the taxes. The statute must be the sheriff’s guide; he must obey its mandares; having sold the land-to the relator, as the highest bidder, and entered his name on his books as the purchaser, the purchaser (the relator here) acquired rights and assumed liabilities respecting his purchase of these lands. .When such bidder offered to pay the money called for by his bid, it was the plain duty of the sheriff to make the deed called for by the statute. It was but a ministerial act. It can make no difference, that one claiming to be the holder of the mortgage paid to the sheriff the delinquent taxes, for such an act occurred after the relator had purchased, after his rights had- become fixed, so to speak. Nor can it make any difference, that the delinquent taxpayer did not appear in person to receive the balance of the proceeds of sale after the taxes and charges had been paid. Such delinquent taxpayer had a perfect right to depute the relator to receive for him and to receipt to the sheriff for such surplus. We do not undertake to pass upon any question connected with any holder of an alleged mortgage. We confine our decision to the question, and the parties before us. To our minds, it is clear that the Circuit Judge was in error. The decision of this court, referred to as authority, State ex rel. Snelling v. Sheriff, supra, is clearly distinguishable from this case; for in the former there was a clear, legal remedy possessed by Snelling against the sheriff, while here there is not.

It is the judgment of this court, that the order of the Circuit Judge be reversed, and that this proceeding be remanded to that court, that the writ of mandamus shall issue.