upholding a foreclosure sale in which the mortgagee purchased the property sold and further stating that, to set aside a sale, “there must be such irregularity in the proceedings as to show that the sale was not fairly made, or that appellant was defrauded or misled to his injury and loss”Summary of this case from Bloody Point Prop. Owners Ass'n, Inc. v. Ashton
April 25, 1938.
Before MERCHANT, J., County Court, Spartanburg, October, 1937. Affirmed.
Mortgage foreclosure suit by Joe Wooten against Guy Seanch. From an order overruling a motion to set aside a sale and cancel the record of deed executed by the Master to the premises, the defendant appeals.
The order of Judge Merchant referred to in the opinion follows:
This cause comes before me upon a motion by the defendant's attorney to set aside the judicial sale and cancel the record of deed executed by the Master to the premises herein, upon the following grounds:
1. The gross inadequacy of consideration.
2. The defects appearing in the record.
It appears from the record of the cause herein that the defendant was duly served, and order of reference duly had, and that the defendant appeared at the hearing before the Master through his attorney, Hon. C. Yates Brown, Esquire a reputable attorney of this bar, and that his rights at said hearing and upon the issuing of the final decree of Court were fully protected. That the advertising and sale of the premises herein under order of Court was regular and in compliance with law.
That the sale of premises by the Master was to be the final sale of the premises, as no deficiency judgment was asked against the defendant by the plaintiff.
It is not claimed that there was any irregularity in the form or manner of the sale as ordered by the Court, and there is no reason appearing that the Court should set aside and order a resale of the premises herein upon any grounds or reasons shown.
The defendant had ample opportunity to protect his rights at the sale, and it appears that his attorney was present at the sale. It has been repeatedly held that mere inadequacy or insufficiency of price is not sufficient to set aside a sale under the decree of Court, after due advertisement and after every person is given ample opportunity to bid at said sale, which appears to have been done in this case. The sale having been duly ordered by the Court and having been regularly held under the decree of the Court, notice to all parties and the public duly given, and the bid duly entered and recorded, it was clearly the duty of the Master to execute the deed upon payment of the price bid. The deed having been duly issued by the Master, I can, under the facts of this case, see no reason to disturb the record, and, the sale having been confirmed, it is ordered that the petition of the defendant be and is hereby denied.
Mr. Andrew A. Manning, for appellant, cites: Error in advertisement: 153 S.C. 1; 150 S.E., 310. As to inadequacy of price: 174 S.C. 150; 177 S.E., 24; 172 S.C. 544; 174 S.E., 592. Failure to file lis pendens: 159 S.C. 294; 156 S.E., 771.
Mr. Robert J. Gantt, for respondent, cites: Confirmation of sale: 35 S.C. 409; 174 S.C. 150.
April 25, 1938. The opinion of the Court was delivered by
The appellant made a motion before the County Court of Spartanburg County to set aside a sale of real estate made in the above-entitled case by the Master for Spartanburg County, under an order of foreclosure of mortgage. The grounds of the motion were: (1) Gross inadequacy of consideration; (2) defects appearing in the record; (3) that the defendant is erroneously named in the pleadings. No lis pendens was filed. There was no order confirming sale.
Judge Merchant, of the County Court of Spartanburg County, overruled the motion. This appeal followed, predicated upon fourteen exceptions, which make but three questions for our consideration, viz.: Inadequacy of consideration. Alleged defects in the pleadings, in the following particulars: Defendant is incorrectly named in the pleadings. No lis pendens was filed. The land to be sold was incorrectly described in the advertisement of sale; that the report of sale had not been confirmed.
It is the established rule of this jurisdiction to uphold judicial sales, when regularly made, "when it can be done without violating principle or doing injustice." Farr v. Gilreath, 23 S.C. 502, quoted with approval in Jefferson Standard Life Ins. Co. v. Standard Bldg. Co., 174 S.C. 150, 177 S.E., 24, 27.
It is equally as well established as a rule of law in this jurisdiction that mere inadequacy of price is not alone sufficient ground for setting aside a judicial sale. The rule is thus stated in the case just above cited: "No doubt the rule is that inadequacy of price unless it is so gross as to shock the conscience, or accompanied by other circumstances warranting the interference of the Court, is not enough to move the Court to set aside a sale fairly made."
Are "the other circumstances" relied upon by appellant in this case such as should sustain the motion to set aside the sale? To have that effect there must be such irregularity in the proceedings as to show that the sale was not fairly made, or that appellant was defrauded or misled to his injury and loss.
The facts relied upon by the appellant are that the appellant is incorrectly named in the pleadings in that he is styled Seanch, whereas his real name is Scanch. It is sufficient to say that to avail himself of this objection, the issue should have been made by answer or demurrer, which was not done. Appellant appeared by attorney, who consented to the order of reference, and attended the reference, and no reference was made to the alleged misnomer.
A further alleged defect is that the property to be sold is incorrectly described in the advertisement of sale. No copy of such advertisement is in the record and no proof is offered of the alleged error. Nor is there any evidence offered that any one was misled by the alleged error, or deterred from bidding on the property by it. Another alleged defect is that no lis pendens was filed. The purpose of filing lis pendens is to give notice to a purchaser, or encumbrancer, of the pendency of the action. No such purchaser or encumbrancer is here complaining, and appellant is not shown to be damaged by the failure to file such lis pendens. Still another alleged defect is that there has been no order confirming the sale. This matter is disposed of by the provision of Section 9080 of the Code of 1932, which is as follows: "Upon the execution and delivery by the proper officer of the Court of a deed for any property sold at a judicial sale under a decree of a Court of competent jurisdiction, the proceedings under which such sale is made shall be deemed res adjudicata as to any and all bona fide purchasers for value without notice, notwithstanding such sale may not subsequently be confirmed."
It is true that the mortgagee was the purchaser of the property sold in this case. There is no suggestion of fraud in the case, nor is there any evidence that the purchaser had notice of any irregularities in the proceedings — if any existed. The trial Judge holds that the sale was regular and fair. We do not think that the failure to have the sale confirmed by the order of the Court works any hardship on the mortgagor. The sale may still be confirmed.
Let the order of Judge Merchant be reported.
The judgment is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.