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The opinion of the Court was delivered by
Mr. Justice Carter.
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This action by Ransom Griddle et al., as plaintiffs, against the defendant, John H. Taylor, arose in the County of Calhoun, this State, and involves the partition of a certain tract of land situate in said county.
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The case comes to this Court on appeal by the plaintiffs from the decretal order issued by his Honor, Judge C. C. Eeatherstone. This Court is satisfied with the finding and conclusion expressed in the order issued by Judge Eeatherstone, and for the reasons stated therein the exceptions are overruled and the judgment of the lower Court is affirmed.
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Note: The order of Judge Eeatherstone, dated April 28, 1936, will be incorporated in the report of the case.
Mr. Chief Justice Stabler and Messrs. Justices Bonham, Baker and Eishburne concur.
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Case posture Posture Before FEATHERSTONE, J., Calhoun, April, 1936. Affirmed.Action by Ransom Griddle and others against John H. Taylor, for the partition of real estate. From a decretal order allowing a lien in defendant's favor, plaintiffs appeal.
The order of Judge Featherstone is as follows:
This is an action for the partition of certain real estate of Abbie Griddle, late of the County of Calhoun, S.C. The
plaintiff, heirs at law of Abbie Griddle, deceased, by their complaint allege, among other things, that the said Abbie Griddle died, intestate, about the year 1932, possessed of the real estate involved in this action; that the defendant, John H. Taylor, claims the said real estate by virtue of a tax deed executed in his favor by Geo. C. Summers, tax collector for Calhoun County; that said tax deed is defective because said tax sale was not properly advertised and the tax collector failed to take exclusive possession of the premises as required by law, etc.; that the plaintiffs are entitled to an accounting from defendant for the rents etc., of said premises; in addition to an accounting, the plaintiffs also demand an order of the Court declaring the said tax deed to be null and void and for a partition of the premises.
The defendant filed his answer wherein he alleged that the tax sale was regular and it conveyed to him a good fee-simple deed of the said premises; the defendant also set up a claim for betterments and improvements by way of counterclaim against the premises in the amount of $170.00.
The case was, in due course, referred to Hon. J.C. Hiott, as Special Referee, who took the testimony and found therefrom, among other things, that Abbie Griddle departed this life about the year 1932, leaving as her heirs at law the plaintiffs in this action; that the premises were properly sold for taxes and a deed of same was duly executed and delivered by Geo. C. Summers, tax collector for Calhoun County, on the 4th day of April, 1935, to the defendant; that said deed was issued in accordance with the law and and the statutes of this State were fully complied with in every respect; that while this paper purporting to be a title was issued by the tax collector in accordance with law, the testimony in the case shows that as a matter of fact it is an equitable mortgage, that said premises should be sold by proper officer of this Court and the proceeds from said sale applied to cost and expenses of this action and the lien
in favor of the defendant for the sum of $121.40, and that the balance be divided equally among the plaintiffs.
The plaintiffs, within due time, filed numerous exceptions to the report of the Special Referee, the gist of which was that the Special Referee erred in allowing the defendant's claim for betterments and improvements.
The defendant also filed exceptions to the report of the Special Referee charging error on his part in holding that the tax deed should be set aside.
After a careful consideration of the testimony in this case and the law applicable thereto, I am of opinion that the rights of all parties to his action have been equitably and fairly determined and disposed of by the Special Referee and his report should be sustained; it is accordingly ordered, adjudged, and decreed:
1. That the exceptions filed by the plaintiffs and defendant to the report of the Special Referee be and the same are hereby overruled.
2. That the report of the Special Referee be and the same is hereby confirmed in all particulars and made a part of this decree.
3. That the said Special Referee, J.C. Hiott, Esq., do proceed to advertise and sell, as provided by law, the real estate mentioned and described in the complaint and hereinafter set forth at public auction before the Courthouse door at St. Matthews, in the county and State aforesaid on the regular sales day in June, 1936, being the first day of said month, during the usual hours of sale or some convenient sales day thereafter to be designated by the said Special Referee, upon the following terms: Cash. The purchaser or purchasers to pay for all papers, stamps, and taxes falling due after date of sale; that the said Special Referee do require of the successful bidder a deposit of 5 per cent. of the amount bid, immediately upon the conclusion of the bidding, as a guaranty of good faith, and upon such bidder's failure to make said deposit the said Special Referee shall
immediately resell said property on the same terms; in case of any subsequent raised bid, as provided by law, each such bidder shall make a like deposit; the deposit of such final bidder shall be forfeited and applied to the cost and expense of the sale and of this action in the event of noncompliance by such last bidder within 40 days from the date of public sale as provided; that upon the terms of the sale being fully complied with the said Special Referee do make title to the purchaser in fee and thereupon he shall be put in possession of the said premises upon the production of his deed.
4. That the said Special Referee shall apply the proceeds of sale of said premises, first, to the cost and expenses of the sale and of this action, and, second, after the payment of the lien in favor of the defendant in the sum of $121.40, the balance shall be divided among and between the plaintiffs in accordance with their respective rights and interests as fixed in the report of the Special Referee.
5. That the parties to this cause and all persons claiming from, under, or by them, or any or either of them, be forever barred of all right, title, claim, and interest in and to the premises herein ordered sold.
The following is a description of the premises ordered to be sold:
All that certain lot and parcel of land, situate and lying near the corporate limits of the Town of St. Matthews, containing one-fourth of one acre of land, with the improvements thereon, bounded on the north by Monks Corner road, on the east and south by lands of Jackson McLendon, and on the west by lands belonging to Rachell Bull et al. Source: CourtListener
