Wilson v. Cantrell

18 S.E. 517, 40 S.C. 114, 1893 S.C. LEXIS 18

• Court: Supreme Court of South Carolina
• Decided: November 27, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Mr. Justice McGowan.

This is a law case, pure and simple, the sole purpose of the action being to recover a tract of land in Spartanburg County, described in the complaint as containing one hundred and fifty acres. The judgment of the Circuit Judge contains a statement of the case so full and clear, that any attempt to restate it could add nothing, and possibly tend to confuse. (The Circuit decree ought to appear in the report of the case.)

First. The plaintiff’s abstract of title, as claimed, is very simple, as follows: (1) Both parties claim through a common source, one Wade H. Gowan, who originally owned the land. (2) That the land in question was assessed for taxes of the fiscal year commencing November 1st, 1887, in the name of W. H. Gowan; that the taxes and assessments charged against him on the tax duplicate for said fiscal year not having been paid by him, or collected by distress or otherwise, on or before January 2, 1889, the county treasurer for said county issued his tax warrant or execution, in the form required by law for the collection of delinquent taxes, against the said W. H. Gowan; that the return of the sheriff, endorsed upon said warrant or execution, is to the effect, that the said W. H. Gowan had no personal property out of which the taxes charged could be made, and that he had seized, levied upon, and taken possession of 150 acres of land, the property of the said W. H. Gowan— the same here in controversy; that the amount of the taxes, assessments, and penalties stated in the warrant or execution is twenty-six dollars and forty-two cents ($26.42); that after due advertisement, the land levied on as aforesaid was sold by the sheriff on the salesday of August, 1889, before the court house door in said county, during the legal hours of sale; that at said sale Stanyarne Wilson, the present plaintiff, became the purchaser, as being the highest bidder therefor; that he complied with the terms of sale, and the sheriff executed to him titles bearing date August 10, 1889, which was duly recorded September 3,1889, and was let into the possession thereof under this title. Afterwards his tenants attorned to the defendant, and he brought this action to recover the land.

1 Second. The grounds on which defendant Cantrell resists recovery are as follows: That at and before the land was sold under the aforesaid tax execution, he, Cantrell, was conducting legal proceedings against the said Gowan, to foreclose a mortgage which he owned upon the identical land now in dispute, said mortgage bearing date as far back as 1883. That in said proceeding he obtained a confirmation of the master’s report, a final judgment, and an order for the sale of the land on August 14, 1889, and it was again sold by the master under that order on October 7, 1889, and he, Cantrell, being the highest bidder, for $655, the master made him title and let him into possession. And he now claims that, although the sheriff’s deed to the plaintiff under the tax execution is older than his from the master, yet that, as his mortgage under which the order of sale was made had a lien before the tax execution existed, he has the better title. We suppose that such might have been the case as against the lien of any ordinary junior judgment, but as against the lien of the tax execution, the law declares that: “All taxes, assessments, and penalties legally assessed shall be considered and held as a debt payable to the State by a party against whom the same shall be charged; and that such taxes, assessments, and penalties shall be a first lien in all cases whatsoever upon the property taxed,” &c. So that if this were all, there could be no doubt that the plaintiff would be entitled to recover the land.

But the defendant makes vigorous defence, alleging irregularities and illegality in the tax proceedings, and the purchase and acceptance of title thereunder by the plaintiff. In his answer, among other things, the defendant states as follows : “Defendant admits that he claims the land described in the complaint through one Wade H. Gowan, said title being derived from a sale of said lands under an order of this court for the foreclosure of a mortgage over said land, in a proceeding instituted in this court by the plaintiff as attorney for the said Wade H. Gowan; that said mortgage is an older and prior lien on said land than the lien through which plaintiff claims title to said land. That pending proceedings for the foreclosure of said mortgage, as hereinbefore stated, the said land was levied upon by the sheriff of this county, advertised and sold for taxes, and the same bid off by the plaintiff, who was at the same time the agent for the said Gowan, and if the plaintiff has any valid deed to said land, he holds the same as agent of the said Gowan. That when the plaintiff bid off said land, he did so with full knowledge of the rights and equities of the defendant. Defendant further says that the deed through which the plaintiff claims said laud is defective and void, on account of the non-compliance with the laws of this State. But that, notwithstanding this fact, as well as the others heretofore stated, defendant wishing to avoid the expense of a lawsuit, offered to pay to plaintiff any money he may have paid out on account of taxes due on said land, but that said offer was refused,” &c.

The cause was referred to the master to hear and determine all issues, and report his conclusions to the court, with leave to any party to except thereto. Accordingly the master took the testimony, including the whole record in the foreclosure proceedings in the case of Cantrell vs. Gowan, as well as the tax execution, and the sheriff’s return of nulla tona as to personalty, and his advertisement of the sale and conveyance under it. After stating the important facts in the case, which appear in his report, he held “that the plaintiff was entitled to recover possession of the land in' dispute, together with two hundred dollars damages. The case seems to be a hard one, but the defendant had his remedy in buying the property at the tax sale, or in paying the taxes before sale,” &c. Upon exceptions to this report, the cause came on for trial before his honor, Judge Izlar, who, concurring in all the facts found by the master, and in his law except upon one point, pronounced judgment that the exceptions of the defendant be overruled, and that the report as modified be confirmed, and thus modified stand as the judgment of the court, &c. From this judgment the defendant appeals to this court upon numerous exceptions, which are all printed in the Brief (thirty in number); but as some of them are long, and state the same matter in different forms, we think that the points made may be more satisfactorily considered by condensing them into the following propositions in their natural order:

2 First. “That his honor erred in not ruling that when the plaintiff bid off the land at the tax sale, he was the attorney for W. H. Gowan, the then owner of the land, in a case then pending in the court between Gowan and the defendant in this action, involving the identical land, and the foreclosure of a mortgage given by Gowan thereon, and that his act in bidding off the land and taking a deed therefor to himself was unauthorized, illegal, and void,” &c.

It is very true, that the relation of attorney and client is a responsible and delicate one, and the books of reports are full of evidence of the determination of the courts to maintain with scrupulous care the integrity of that relation at all times and under all circumstances. But we can not think it necessary in this case to comment on the numerous cases from different States, which the research of the defendant’s counsel has enabled him to bring to our attention on the subject. Thegeneral doctrine is no where better stated, as we think, than in 1 Am. & Eng. Enc. Law, page 959, as follows: “The relation of attorney and client being quasi fiduciary, all transactions between them to be upheld, must be uberrima Jides, and to establish that such is the case, rests with him who would uphold the transaction. The jealous care and scrutiny over such transactions extends to all gifts, conveyances, and contracts by the client, and all securities given by him pending the relation. The foundation of the rule is the influence arising from the relation ; so long, therefore, as the influence exists, the rule, of course, applies,” &c. As we understand it, the above is only another form of stating the principle as it has been declared in this State (see Miles v. Ervin, 1 McCord Ch., 545), where Chancellor David Johnson closed his well considered decree in the following words: “I conclude, therefore, that all contracts between attorney and client, in relation to the property in litigation, are not necessarily void on the ground of that relationship; but that to render it so, it must appear that it was used to the prejudice of the client. As a matter of proof, it is impossible to lay down any rule as to what will or will not constitute a sufficient evidence of it,” &c.

3 2 Taking this as the settled principle, did Mr. Wilson show the necessary good faith to his client? The master found the facts as follows: “Mr. Wilson was representing Mr. Gowan in the foreclosure suit of Cantrell against him, when the land was sold for taxes, but he made purchase at sheriff’s sale for himself, and Mr. Gowan is contented and satisfied with such purchase. Mr. Gowan has never made any complaint to the sheriff concerning the sale, nor did he do so while said land was advertised.” In these findings the judge concurred, and they are beyond review by this court. Miller Bros. v. S. C. Railway Company, 33 S. C., 359. Mr. Wilson was not the general agent of Gowan, but had been engaged to make the legal defence in the mortgage suit, and, as it seems, he did his duty in that character, until the cause had been practically lost after the report of the master against Gowan in that case; and Gowan was not in the country, leaving neither money nor directions nor agent to pay the taxes on the land or to buy it. Having discharged his duty in the foreclosure suit without success, Mr. Wilson had no dealing with his client, but bid off the land publicly at sheriff’s sale, paid the purchase money, and received titles. “The law looks with proper jealousy upon contracts between an attorney and his client, to the disadvantage of the client; but here there was no contract with the client.” LeConte v. Irwin, 19 S. C., 558. And when it is further considered, that instead of the sale being to the disadvantage of Gowan, he makes no objection, but is “contented and satisfied” with the sale, and testified as a witness in behalf of the plaintiff, we must concur with the Circuit Judge, that there is nothing in this exception to affect the conclusion of the master. “In order to give these rules effect, it is necessary that the relation of attorney and client should exist between the parties. The mere fact, that the opposite party was an attorney, &c., is not enough. He must, then, have been the attorney of the complaining party.” See Meacham on Agency, § 879.

4 Second. “That the failure of the treasurer to make an effort to collect the taxes due by Gowan between the 15th of December, 1888, and the 2d of January, 1889, rendered the deed to the plaintiff void,” &c. It appears, that while the contest over Cantrell’s mortgage was going on, the land in dispute was listed and assessed for the taxes of the fiscal year commencing November 1, 1887, in the name of W. H. Gowan, amounting to $26.42; and the same remaining unpaid, became derelict on January 2, 1889, the county treasurer issued his warrant on January 23d; and the sheriff having made return to the effect, that the defaulting taxpayer Gowan had no personal property out of which the taxes and penalties charged could be made, seized and sold the land on salesday in August, 1889. In this state of facts, the complaint is made that the treasurer should have issued his warrant sooner, viz., on December 15th, 1888, or on January 2, 1889. The master found as follows: “The time for the payment of taxes was extended in 1887, and hence the treasurer was not compelled to make effort to collect taxes between December 15th, 1888, and January 2,1889, nor, indeed, could he have done so. The facts show that he issued papers from his office as soon as he could do so according to law,” &c. The judge, after stating fully the law upon the subject, held as follows: “Under this state of facts, I cannot hold that the mere fact, that the county treasurer did not issue a warrant or execution against W. H. Cowan, the defaulting taxpayer, between December 15,1888, and January 2, 1889 (even if the time for collecting taxes for said fiscal year had not been extended by the comptroller general), makes the sale thereunder irregular, and renders the tax deed in question null and void,” &c. We cannot say that this was error of law.

3 Third. “That the judge erred in not holding that at the time the tax execution against Cowan was issued, as well as at the time the land was levied upon, he was the owner of personal property, and that.it was the duty of the sheriff to have levied upon and sold this, before levying upon and selling the land; and that his failure to do so rendered the deed to the plaintiff null and void.” This was a question of fact, and it can not be necessary to say more than to state the finding of the Circuit Judge upon the subject as follows: “In addition to the foregoing facts, an effort was made on the part of the defendant to show that the said W. EL Cowan owued on the 15th of December, 1889, and at the time of the tax levy, sufficient personal property to pay and satisfy the taxes, assessments, and penalties charged against him. I have examined the testimony on this point very carefully, and must say that I concur fully in the conclusion reached by the master therein,” &c. Exception disallowed.

5 Fourth. “That the deed is void, because the sheriff levied upon and sold the entire tract of one hundred and fifty acres of land without first making an effort to divide it and sell a part,” &c. It is true, that there is considerable disparity between the quantity of land sold under the tax execution and the amount of taxes paid; but that may have resulted from several causes — possibly from the low estimate generally placed on tax titles, or the neglect of the parties in interest to attend the sale and pay the taxes or purchase the land. The question now is, whether, in a case where no fraud or collusion is charged, that circumstance alone should be considered sufficient to invalidate the sale and the deed made under it. It seems that at one time it was the law of the State that, in selling lands for taxes, the' collecting officer was limited to “the person offering to pay the taxes thereon for the least quantity thereof,” to be cut off from the northwestern corner of the tract. As we understand, however, such is not now the law, but the warrant of the treasurer is lodged with the sheriff, to be executed like other process in his hands, “by distress and sale of the personal property; and if sufficient personal property can not be found, then by distress and sale of the land of the defaulting tax-payer,” &c. See The State ex rel. Smelling v. Turner, 32 S. C., 348, and Shell v. Duncan, 31 Id., 567. In the latter case of Shell, 1,200 acres of land was sold in a body to collect $113.70 for taxes, and no objection was made on that ground to the title.

It is true, the act of 1887 (19 Stat., 884), so often herein referred to, authorizes “the sheriff of the county to seize and take exclusive possession of so much of the defaulting taxpayer’s estate, real or personal or both, as may be necessary to raise the sum of money named therein, and after due advertisement to sell the same, &c. * * * And after deducting from the proceeds of sale the amount of taxes and charges, to pay the excess, if any there be, to the defaulting tax-payer,” &e. It is very obvious that the main object of this act was to collect, at all events, the taxes due the State. But we do not understand that in doing so, it was intended to limit the sheriff, on pain of destroying his own deed, to buying and selling only “so much” of the land as would produce the precise sum necessary to pay the taxes; for the act expressly provides, that “if there is any excess, it shall be paid over to the defaulting tax-payer.” This certainly contemplated the possibility of an excess. Of course, a sacrifice of property is always to be avoided if possible. It would seem difficult, if not impracticable, for the sheriff, a ministerial officer, without the necessary machinery of law for that purpose, to determine in advance, with any degree of certainty, how much land (to be sold under a tax execution) would produce the precise sum required, and no more. But if, as argued, the power to sell “so much as may be necessary,” &c., imposed upon the sheriff the duty of determining in advance what property he should sell — the whole or some part thereof, as in his discretion he might think best — it seems that he exercised that discretion by offering for sale the whole tract of 150 acres. The result showed that the sale produced the exact amount required, leaving no excess. Under these circumstances, we can not say that he so abused his discretion as to avoid the sale. As was said by the master: “The form of execution set out in the statute provides that the sheriff sell so much of delinquent’s property as may be suffix cient to pay the taxes and costs, and it is urged that in this case the land could have been divided and sold in separate tracts, and that either one of them would have been sufficient. The best answer to this is, that, under the circumstances, the whole tract brought only enough to pay the taxes and costs. It is not what the land is really worth, but what it would bring, that should guide the sheriff in estimating how much he should sell,” &c. Both the master and Circuit Judge found that the levy and sale were not excessive, aud that the advertisement of the sale was regular; and, therefore, we are constrained to agree, that there is nothing in the levy, advertisement, or sale which should invalidate the plaintiff’s deed.

6 Fifth. “It is contended that Mr. Floyd, the county treasurer, issued his warrant and execution for an amount including the poll tax, with the fifteen per cent, penalty thereon, and that the same was not a lien on the land, which was in no sense liable therefor; and that the levy on the land for this amount rendered the deed void,” &c. The poll tax not paid, and, therefore, put into the warrant, with the penalty, was a small item, and even if it should be stricken out as not allowable, I confess I do not see how that could invalidate the title of the purchaser, for the remainder of the execution would be unaffected, and, as I suppose, be sufficient to sustain the sale. But we think that the Circuit Judge, in his decision below, shows very satisfactorily that the treasurer was right to include the “poll tax” among the other items in the warrant. After citing the acts upon the subject, he states his conclusion as follows: “The poll tax is a tax assessed against the party. The taxes, assessments, and penalties charged against any property or party on the duplicate, and not paid within the time allowed by law, are to be treated as delinquent taxes on the real and personal property of the defaulting tax-payer, and such property may be sold to satisfy the same. This view does not appear to me to be in conflict with sections 11 and 12 of said act, and the fact that section 6 makes it a misdemeanor for any person to fail or refuse to pay his poll tax, does not take away the right of the State to enforce the collection of such tax by distress or sale of the real and personal property of the defaulting tax-payer, according to law,” &c. We can not say that this was error. We think that making the failure to pay the tax a misdemeanor, was intended to be “cumulative.”

7 We also agree with the Circuit. Judge, in holding that this case does not fall under section 3, but section 2, of the act of 1887, so often referred to; and is ruled by the case of Bull v. Kirk, 37 S. C., 395, which decides that, under the circumstances of this case, the sheriff’s deed is only prima fade evidence of the regularity of the tax proceedings prior to its execution, and may be attacked. But while this is so, the burden is upon the defendant to prove that one or more of the essential requirements of the law have not been complied with, and that the tax proceedings have not been regular, which the defendant in this case has failed to do.

The case is in several respects a novel one, and involves an unusual number of points. The court has endeavored to consider all the important questions made, and feel excused, for saying, that they have been greatly assisted by the learned arguments of the counsel on both sides.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.