Supreme Court of South Carolina, 1914

Smith v. Smith

Supreme Court of South Carolina · Decided April 23, 1914 · Gary, Eraser

81 S.E. 499; 97 S.C. 242; 1914 S.C. LEXIS 167 (South Eastern Reporter)

Counsel

Messrs. A.J. Hydrick, Jr., Robert E. Copes and W.B. Martin , for the appellant, cite: Purchaser party to action: 71 S.C. 87 ; 37 S.E. 289 ; 24 Cyc. 30. Entitled to notice of filing of report on sale: 2 Code Civ. Proc. 328, 332; 24 Cyc. 30. And to appeal from order confirming same: 37 S.C. 289 . Messrs. Brantley Zeigler and Wolfe Berry , also for appellants, cite: Circuit Judge cannot modify order of another Judge: 85 S.C. 570 . Sale in violation of stay order: 17 A. E. Enc. 1004. Purchaser entitled to time to . Messrs. Howell Gruber , for respondent, cite: Appellant not a party to action: 18 S.C. 501 ; 71 S.C. 87 ; Ib. 321; 16 S.C. 550 ; 23 S.C. 111 ; 23 S.C. 112 .

Opinion of the Court

The opinion o-f the Court, after reciting the above stated facts, was delivered by

Mr. Chief Justice Gary.

The practical question is whether there was error in the resale of the property after it was bid by Mr. A. J. Hydrick, Jr., as attorney for Mrs. Sophia A. Stack.

In Chemical Co. v. McLucas, 87 S. C. 350, 69 S. E. 670, the Court says: “The principle is well settled in this State that a purchaser of land, under a decree rendered by the Court, in the exercise of its chancery jurisdiction, is entitled to a reasonable time, after bidding off the property, to- ascertain whether the title is definite” — citing the case of Mitchell v. Pinckney, 13 S. C. 212. To the same effect is the case of Fuller v. Missroom, 35 S. C. 314, 14 S. E. 714, in which the Court announced the principle that a purchaser at a sale for partition is entitled to> have the title examined, and a report made thereon by the master.

The facts unquestionably show that Sophia A. Stack was not allowed a reasonable time within which to' examine the title, and the authorities just cited sustain the proposition that the resale of the property by the master was a nullity.

It is the judgment of this Court that the judgment of the Circuit Court be reversed, and that Sophia A. Stack, appellant, be allowed 20 days after the remittitur is sent down within which to comply with the terms of the sale under which property was sold; that, if she fails to comply with the terms of sale within that time, then the property shall be resold upon the terms mentioned in the decree.

Mr. Justice Eraser concurs in the result.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.