Before Gary, J., Orangeburg, October, 1916. Action by P. Webb Bull against Anna B. Fallaw and others. Judgment for surplus proceedings of judicial sale, and defendants appeal.
Good law ✅— No negative treatment on recordhow we know
Reversed · Decided 1918-04-03
How this case has been cited
Cited by 3 later decisions — most recently July 1954
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1I concur in the result in the opinion of Mr. Justice Watts. It seems to me that this is not a proceeding for specific performance, in which the Court is allowed discretion. The respondent alleged a contract of sale, but that there was a cloud on the title. The appellants admitted the contract of sale, but denied the defect in the title. The trial Court held that the appellants could not convey according to the contract. That was the end of respondent's case, if it had stopped there; but it did not stop there. By agreement of all parties, the case was reopened after the sale that showed a surplus over the contract price. The second decree reaffirmed the first decree. The first decree found that the conveyance could not be made. It seems to me that it is illogical and untenable to hold that, while the respondent is not bound by a contract modified to his hurt, the appellants are bound to a contract modified to their hurt. The position that, while the respondent is not entitled to the land, he is entitled to the surplus of the proceeds of the sale of the land, should not be sustained. It is true, in order to do justice, a Court may order a sale of the land, and the surplus turned over to him who seeks relief; but that is on the theory that the person who seeks relief is the equitable owner of the land. In this case the respondent is declared not to be the owner. The finding that the appellant could not convey has not been appealed from, but reaffirmed, and is the law of this case. Immediately preceding the sale the respondent, under the *312
decree of the Court, was out of the case, and the case proceeded to determine the rights of codefendants. The parties themselves did nothing to change the status. If the land had sold for less than the claims, the appellant would have been liable for the deficit. There is no deficit, but a surplus, and I think the surplus should go to the appellants.
