majority">The opinion of the court was delivered by Mr. Justice Pore.

This action was brought to a hearing

before his honor, Judge Izlar, in the Court of Common Pleas for Union County at the October term, 1892, and the decree of the court having been rendered on the 3d of January, 1893, in favor of the plaintiff, the defendant has appealed therefrom on twenty-eight grounds, to wit:

That the Circuit Judge erred in finding: 1. That James *50Munro, Esq., was ready and willing, at all times during bis term of office, to execute the deed of conveyance, as required by the decretal order under which the land was sold, and to deliver the same upon the defendant executing his bond and mortgage for the credit portion of the purchase money of said land. 2. That said deed was not delivered because of defendant’s failure to execute such -bond and mortgage. 3. That the defendant made no absolute refusal to comply till just before action was commenced, and in not finding and decreeing the contrary. 4. That the material allegations of the complaint are fully sustained by the evidence. 5. That the action is one for specific performance. 6. That the Court of Equity would enforce the specific performance of a contract like the present one. 7. That the rule in equity is different from that in law in regard to the time in which a contract is to be performed. 8. That the plea of the statute of limitations could not prevail under the circumstances of this case. 9. That the plaintiff is the successor in office of James Munro, as late master for said county. 10. That James Munro, as late master, was directed by the court to make a deed of conveyance of said land to the purchaser thereof. 11. That there was a sale of said land to the defendant. 12. That if James Munro, Esq., as master as aforesaid, had signed the deed, as required by law, while in the exercise of the duties of his office, to be delivered by him to the defendant Young upon his complying with the contract of purchase on his part, the plaintiff would have been warranted in completing the contract by delivering to defendant the said conveyance upon defendant executing the bond and mortgage required by terms of sale, and that the plaintiff would have been, under these circumstances, in a position to have fulfilled the agreement on the part of the vendor, and that the transaction would have related back and have taken effect as of the time when it should have been completed, and that such act would have been confirmed by the court. 13. That under the circumstances of this case, the plaintiff has such right and interest in the contract as would entitle him to maintain an action for specific performance. 14. That the successor in office of the master who made the sale is invested with sufficient right and *51interest in the uncompleted sale to enable him to compel the purchaser to comply with his contract. 15. That the act of the legislature, approved March 22,1878,16 Statutes at Large, page 608, and cited by his honor as if in 18 Statutes at Large, page 608, applies to the present case. 16. That the duties of James Munro, as late master as aforesaid, were governed by the said act of the legislature of 1841. 17. That this transaction was governed by the said act of the legislature of 1841. 18. That the right to take proceedings in equity is such chose in action as is mentioned in the act of 1841. 19. That Munro, late master, at the expiration of his term of office, had a right to bring an action in equity against the defendant, to compel him to complete his contract, and that this right passed to, and was transferred to, the plaintiff. 20. That notwithstanding the irregularity in this case, the court can grant relief therein. 21. That this action may be regarded as an action to foreclose a contract, and that the plaintiff had a right to enforce it. 22. That there was no laches on the part of the plaintiff or of James Munro as late master. 23. That the delay in completing the contract was attributable to the defendant, even after the absolute refusal of the defendant to comply. 24. That the complaint states facts sufficient to constitute a cause of action. 25. That the plaintiff is entitled to the relief demanded in the complaint. 26. That his honor further erred in adjudging and decreeing, that the defendant specifically perform said alleged agreement, respecting the said purchase, by executing and delivering his bond to the plaintiff, as master of this court, conditioned for the payment of $168.75, payable in two equal annual instalments, with interest from the first day of January, 1883, payable annually; that is to say, $84.37 on the first day of January, 1884, and all interest then due, and the remaining sum of $84.37, and all interest then due, on the first day of January, 1885, together with mortgage of said lot. 27. That the defendant pay the costs of this action. 28. That in case the defendant failed to execute and deliver said bond and mortgage, or failed to pay the credit portion of the said purchase money, that said lot be sold by the master.

Before undertaking to consider in their order the numerous *52grounds of appeal here presented for our consideration, it may not be amiss to recall some of the facts upon which this action is predicated, although they are very fully and accurately set forth in the decree of the Circuit Judge, which decree in full will accompany this case. James Munro, as master for Union County, under a decree of the Court of Common Pleas, on its equity side, exposed for sale at public auction, on the first Monday of January, 1883, a lot of land, containing four acres, situated in the town of Union, and constituting a part of the real estate owned by. Dr. A. Wallace Thomson at the time of his death, for one-fourth of the purchase money to be paid in cash, and the balance on a credit of one and two years, in equal instalments, with interest on the credit portion from the 1 January, 1883, and at such sale the defendant, John L.Young, became the purchaser at the price of $225. Col. Young paid the one-fourth of his bid in cash to the master, but although requested by said master to complete his purchase, neglected so to do. He, however, offered to pay this credit portion to the master, but refused to pay any interest. His offer was declined by the master. Thus the matter stood (Young being in possession of the land) until 1891 (January), when the present plaintiff, Christopher H. Peake, was duly appointed master for Union.

Although the law contemplated a surrender by Munro to Peake within less than thirty days after Peake duly qualified as such master, of all the assets of the office of the master, yet, no doubt by an arrangement between these gentlemen, the outgoing and incoming master, Mr. Munro did not formally assign the contract of Young for his said purchase until early in the year 1892. Efforts were then made by both these gentlemen to induce Col. Young to close up this matter by giving his bond and mortgage; they tendered to him deeds for the lot of land in question. At last, Col. Youngflatly refused to comply with his bid, still holding possession of the lot of land in question. Peake, as master, then brought this action against Young, as defendant, reciting all the foregoing facts, and demanding a judgment of the court against the defendant, by which the defendant should be required to perform said agree*53ment, and pay to the plaintiff the balance of the purchase money, with interest thereon and costs; and upon his failure to do so, that the premises be sold and the proceeds of sale applied to the payment of the same and the costs, and that the defendant be required to pay any deficiency. In his answer, the defendant admits that he bid off said land at the sale thereof made by Munro, as master, and that he paid the one-fourth of the purchase money, but denies all the other allegations. The defendant further pleads that the cause of action did not arise within the six years immediately preceding the commencement of plaintiff’s action. He also presented an oral demurrer, that the complaint did not state facts sufficient to constitute a cause of action.

Judge Izlar heard the testimony in open court. The plaintiff alone introduced testimony, the defendant offered none. The testimony offered corroborated all these facts pleaded in the complaint. By his decree, Judge Izlar adjudged that the defendant should perform his contract of purchase, in accordance with the terms of the original decree for sale; that the plaintiff, as master, should execute and deliver to the defendant a deed of conveyance of the premises, but that said deed should be delivered simultaneously with the execution of bond and mortgage by defendant, and for costs to be paid by defendant. However, in case the defendant failed to complete his observance of his duty in the premises by either executing the bond and mortgage or by paying in cash on or before 1 February, 1893, that the lot of land should be sold by the master on sales-day in March, 1893, or on some convenient salesday thereafter, and apply the proceeds of sale to the payment of the costs of the action and to the satisfaction of the amount due by Col. Young on his contract of purchase, and in case of deficiency, the defendant shall pay the same.

1 The 1st, 2d, 3d, and 4th grounds of appeal relate to the findings of fact by the Circuit Judge. The rule announced by this court so often, sanctions such findings by the Circuit Judge unless without any testimony to support them, or when such findings are manifestly against the weight of the testimony. A careful study of the testimony as set out in *54the case convinces us that the Circuit Judge has made no mistake here, and, therefore, these four grounds of appeal are dismissed.

2 By reading the allegations of the complaint it is manifest that the action is one for the specific performance of a contract, and, therefore, the fifth ground of appeal is dismissed; but even if this action should be held not to come within the strict rules in equity governing instances when that court would decree a specific performance of the contract, still the plaintiff would not be without a remedy in a court of equity, as we shall hereafter undertake to maintain, and hence the sixth ground of appeal is not meritorious.

3 4 Now, as .to the ninth ground of appeal, it must be dismissed; for when the legislature of this State created the office of master for TJnion County, and devolved upon the officer (master) duties similar to those exercised in most respects by commissioners in equity under our former statutes, and James Munro was duly appointed such master for Union County, whose term of office having expired on 1st January, 1891, at which time the plaintiff was commissioned and qualified as master, of course such plaiutiff became the successor in office of the said James Munro. Where the Court of Equity for Union County ordered the master, who was at that time James Munro, to sell the land in dispute, although no words of explicit direction were then used for James Munro, as said master, to execute a conveyance of the land to the purchaser thereof, the law implies the grant of such power by the court. The direction to sell and take the bond and mortgage from the purchaser imparts the duty of conveying to such purchaser. Young v. Teague, Bail. Eq., 22; also, section 790 of the General Statutes of this State. The tenth ground of appeal must, therefore, be dismissed.

5 The proof in this case was overwhelming and without any contradiction — indeed, the answer of defendant admitted — that at the sale of this land the defendant was not only entered upon the book of sales kept by the master as the purchaser, but the defendant actually paid a part of the purchase money. The eleventh ground of appeal must, therefore, be dismissed.

*556 The twelfth ground of appeal relates to the enunciation by the Circuit Court of a sound piece of law, not applying, however, to the state of facts proved in this case; for James Munro did not execute any deed of conveyance to the defendant during his term of office. If he had done so, &c:, there would exist no necessity for the execution of a new deed by the present master. This ground of appeal is dismissed. Besides all this, when the decree appealed from is read as á whole, objections here raised are shown to be groundless.

7 We scarcely deem it necessary to name and consider separately, and in their order, the 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 22d, 23d, 24th, 25th, 26th, and 28th grounds of appeal, though we shall not overlook any of them. Let us examine carefully some of the elements that go to make up so much of the present controversy that we now purpose considering, and which are connected with these grounds of appeal. The condition of the estate of the late Dr. Wallace Thomson rendered it necessary that the personal assets of his estate in the hands of his administrators for the payment of such intestate’s debts should be re-enforced or aided by the sale of the lands owned by such intestate at his death. The law having transferred the title to such lands to the only heir at law of the intestate, Aurelius Wallace Thomson, a complaint was filed on the equity side of the Court of Common Pleas for Union County by such administrator against such heir at law, setting forth this necessity for the sale of such lands, and in accordance with the prayer of the complaint, sale by the master of such lands was ordered. We need not repeat that the terms of such decretal order required the master to sell for one-fourth in cash and the balance on a credit. Now, when John L. Young purchased the four acres in dispute, and his name was duly entered upon the book of sales by the master, he became amenable to the control of that court in that cause; he became, so to speak, a party to that cause. Borer on Judicial Sales, § 148; Tompkins v. Tompkins, 39 S. C., 537. Such purchaser could have been proceeded against by rule to show cause why he had not complied with his bid. Haig v. The Commissioners of Confiscated Estates, 1 DeSaus., 112. If James Munro, while master, *56bad prayed for such process — rule to show cause — it would have been the easiest and speediest course, but this was not done.

Munro ceased to be master on 1 January, 1891, and the present plaintiff became entitled as his successor to the moneys on hand, books, papers, etc., of the office. Section 457 of the General Statutes of this State. Now the book of sales was transferred and also the money paid by the defendant on his contract of purchase. So that the present plaintiff was, in the eye of the law, clothed with all the rights of his predecessor in office as against Young. The plaintiff, under a misconception of his powers, offered to convey to Young, but without an order therefor he was powerless in this respect, for he had not made the sale. Thus we have before us: A valid power in the master, Munro, to sell to Young; an actual contract by Young to purchase; the payment by Young of a part of the purchase money on his contract to purchase; the fact that Young had been let into possession of the land; no power in Munro to convey after he ceased to be master; no power in Peake, his successor, to convey; and no refusal on the part of Young to complete his purchase, until after Peake had qualified and entered upon the duties of his office as master, as the successor in office of Munro. What power over this land did Young have? He was in possession, and had paid part of the purchase money. What power in his office as master did Peake have to force Young to comply 1

Where one, under a contract to purchase, is let into possession of land, and from any cause the owner of the fee declines to go further in the proposed sale, such possession of the would-be purchaser is, in the eye of the law after such declination of the owner, merely permissive of the true owner, and the relation of tenant at will is created by the law as to such would-be purchaser’s possession; but where one is let into possession under a contract to sell, evidence of which contract to purchase is reduced to writing, and such purchaser has paid part of the purchase money, a different rule prevails. In the latter case, the one who sells and who holds the title is declared to hold the title in trust for the purchaser, and the purchaser has an equitable claim for title, and in addition the vendor *57holds the legal title to protect his money due. As the doctrine is stated by Mr. Pomeroy in his work on Equity Jurisprudence, in section 1260, where, speaking of a vendor before delivery of title though possession has been surrendered to the vendee, he says: “In the latter, although possession may have been delivered to the vendee, and although, under the doctrine of conversion, the vendee may have acquired an equitable estate, yet the vendor retains the legal title, and the vendee cannot prejudice that legal title, or do anything by which it shall be divested, except by performing the very obligation on his part which the retention of the legal title was intended to secure, namely, by paying the price according to the terms of the contract.”

So in the case at bar, while Young, under his contract to purchase, evidenced by the entry on the sales book of the master, Munro, payment of part of the purchase money under such contract, and being let into possession of the land sold, has the right to treat the legal title as being held as his equitable estate, yet he has no legal title to the land and cannot have, until the payment of the purchase money under his contract for such purchase. But the vendor has the right to enforce the payment of such purchase money, and cannot be called upon to convey the legal title until such payment is made. Now here, who has created a breach of duty? Is it not clearly Young, the purchaser? Did the master, acting for the court, ever refuse to make title, if Young would comply with his contract for this purchase? The Court of Common Pleas, sitting as a Court of Equity, has complete control of this sale. And inasmuch as justice to all parties concerned, required that an allegation of the facts should be made to the court, in order that the rights and interests of all concerned should be sub-served, and as the pleadings in an action and testimony thereunder are the methods recognized in law whereby these results may follow, we can see no good reason for withholding our approval of the plaintiff’s course to the defendant, by instituting this action. Defendant seems to question plaintiff’s course without an order therefor. Parties in interest, such as creditors, might raise such a question, as the master, to a certain extent, is trustee for .them. He is to receive, under the *58law, payment from the purchaser, and we cannot view with disapproval his honest efforts, in a legal manner, to enforce a payment so long delayed by this defendant.

We do not feel called upon, nor do we deem it pertinent to a proper decision of the legitimate issues growing out of this action, for us to decide whether the act of 1840 governs the master or his predecessor in office. We fail to find such irregularity, on the plaintiff’s part, in this action as to shut him off from the relief he seeks; for it seems to us he had waited but a reasonably short time on the defendant, Young, before he tried conclusions with him in court. The patient forbearance of Munro seems to have been wasted upon the defendant here. Indeed, the previous master, Munro, was entirely too patient. His duty would have been better answered by a prompt report to the court of this negligence of Young. This waiting policy has nothing to commend it, where the rights of others may be jeopardized. Let all these exceptions we have enumerated under this branch of the discussion be overruled.

8 We, also, agree with the Circuit Judge in the matter embraced in the 21st exception. We see no reason why this action may not be regarded in the nature of a foreclosure. This exception is overruled.

9 As to the 27th exception, it may be remarked that in Chancery cases, it is usually in the discretion of the Circuit Judge to affix the liability for costs when he makes up his decree. If we chose to express an opinion, we would venture the remark that the defendant richly deserves this penalty for his long continued and persistent neglect of duty.

10 Before leaving the case, we should state that when the Circuit Judge in his decree provided that if the defendant failed to deliver his bond and mortgage, or failed to pay the credit portion of said purchase money, that said lot should be sold by the master, he evinced a nice regard to the rights of others as affected by the defendant. When the defendant admitted in his answer that he did bid off that parcel of land, sold uuder an order of court, and had paid part of the purchase money, and these facts were supplemented by the facts proved at the trial, the Circuit Judge was justified in this order.

*5911 The statute of limitations, interposed by the defendant, might have been of some benefit to him if plaintiff had been unwise enough to sue him for the money due on the law side of the court, but here, in analogy to the action of the court when a mortgage is being foreclosed (Gibbes v. Railroad Company, 13 S. C., 253; McCaughrin v. Williams, 15 Id., 505; Nichols v. Briggs, 21 Id., 484), the lapse of sis years is of no avail. And it is -well recognized as a principle of equity, that the same rule that obtains in a court of law does not find admission in a Court of Equity, when such issues are raised as are here presented. The authorities cited in the Circuit decree seem to be conclusive on this point. See, also, the case of Blackwell v. Ryan, 21 S. C., 123. All the exceptions of defendant are overruled.

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

Citation profile

How this case has been treated — in progress