Opinion
12643
April 19, 1929.
Before DeVORE, J., Lexington, August, 1926. Reversed and complaint dismissed.
Action by Ola H. Lancaster, as executrix of the estate of Robert A. Lancaster, deceased, against Plumie E. Miller. Decree for plaintiff, and defendant appeals.
Following are the complaint, answer, decree of the Circuit Judge, and appellant's exceptions, ordered to be reported:
COMPLAINT TO REMOVE CLOUD FROM TITLE"I. That the plaintiff is informed and believes that heretofore, to wit, on the 8th day of August, 1912, Penny Lee Smith, now deceased, executed and delivered to Dr. Robert A. Lancaster, her three (3) certain promissory notes, in writing, each for the sum of Two Hundred Thirty-five ($235.00) Dollars, payable and with interest thereon as therein stated, and that thereafter to secure the payment of said three (3) notes, she executed and delivered unto the said Robert A. Lancaster her deed of mortgage, whereby she conveyed unto him by way of mortgage the lots of land therein described as follows:
"`All those certain lots, pieces or parcels of land, situated near the Town of Brookland, in the County of Lexington, State of South Carolina, and known and designated as lots Nos. 11, 12 and 13, in Block No. 1, on a "Plat of land in Lexington County, resurveyed in accordance with a map made by J.G. Guignard, Surveyor, representing the Division of the Estate of John R. Shuler, Surveyed by Theo. C. Hamby, May 11, 1912," which map is recorded in the office of the Clerk of the Court of Common Pleas for Lexington County, in Book 3-K at page 121; and having such shapes, metes and bounds as are delineated on the same map, "which Mortgage was recorded in the Clerk's office of said County, in Book J.J. of Mortgages, page 454."'
"II. That the plaintiff is informed and believes that thereafter no part of the interest or principal of said notes having been paid, the said Robert A. Lancaster brought an action against the said Mortgagor in the said Court of Common Pleas for the foreclosure of said Mortgage and sale of said property, said Mortgagor being personally served with the summons and complaint on the 5th day of February, 1916, and that the said defendant made default, and that subsequently to wit: on the 2nd day of October, 1916 upon proceedings duly had, a decree of foreclosure and sale of said premises was granted by said Court, but said decree was not immediately enforced.
"III. That pending the enforcement of said decree of foreclosure, on the ____ day of October, 1922, said Robert A. Lancaster died in the City of Columbia, State aforesaid, leaving of force his last Will and Testament which was duly admitted to Probate by G. Duncan Bellinger, Esq., Judge of Probate of Richland County, on the 19th day of October, 1922, wherein and whereby the plaintiff, Mrs. Ola H. Lancaster, his wife, was named as sole Legatee, Devisee, and Executrix, and thereafter duly qualified as such, and to whom letters testamentary were duly issued.
"Thereafter the said Ola H. Lancaster as Executrix, as aforesaid, was substituted as plaintiff in said action, by an order of said Court, made by his Honor, W.H. Townsend, the presiding Judge, dated the ____ day of November, 1922, and thereafter on the 4th day of December, 1922, being salesday, after due advertisement, said lots of land were sold under said original decree of foreclosure, and under said order of Amendment, by H.L. Harmon, Clerk of said Court, before the Court House door, at Lexington, were duly sold unto the plaintiff, who duly complied with the terms of said sale, and on the 20th day of December, 1922, said Harmon, as Clerk of Court, aforesaid, duly conveyed said lots of land to her, by a duly executed deed of conveyance thereof, which was thereafter recorded in the said Clerk's office in Book 3-Y of Deeds, page 20, and the plaintiff has been and is now the legal owner and holder of fee simple of said lots of land, and in possession thereof.
"IV. That the plaintiff is informed and believes that on the salesday in August, 1915, Sim J. Miller, then Sheriff of Lexington County, undertook to sell and convey said lots of land under an execution for the State and County taxes thereon for the fiscal year, 1914, and thereafter executed and delivered unto his wife, the above named Plumie E. Miller, a tax deed of conveyance of said lots of land, which was afterwards recorded in the Clerk's office of said County, in Book 3-O of Deeds, page 20, and that the said defendant above named now claims to be the owner of said lots of land under said alleged tax conveyance. That the plaintiff is advised and respectfully submits that said alleged tax conveyance is invalid, for the reason that the said sale by the Sheriff, on which it was based, was not in accordance with the law in such case made and provided and that the delivery of said instrument without notice as required by law to the said Robert A. Lancaster, deceased, as mortgagee, was invalid and in violation of his rights as such mortgagee. That the plaintiff is informed and believes that the said defendant has recently caused a notice reading `For Sale' to be set up on said lots of land, and plaintiff alleges that the existence of said outstanding instrument in the nature of a tax deed, and especially the claim of the said defendant thereunder, constitutes a cloud on plaintiff's title.
"That the plaintiff is advised and respectfully submits that she is entitled to have said deed surrendered up and cancelled.
"Wherefore the plaintiff prays judgment as follows:
"I. That the defendant be required to surrender said alleged tax conveyance, and that the same be adjudged to be invalid as against said mortgage, and the plaintiff, and that it should be cancelled of record.
"II. For such other and further relief as may be just and proper."
ANSWER "For a First Defense"1. That she has no knowledge or information sufficient to form a belief as to the allegations contained in Paragraphs one, two, and three of the complaint, and, therefore, denies the same; and this defendant specifically denies that the plaintiff is the legal owner and holder in fee simple of the lots of land referred to and described in the complaint or that the plaintiff is in possession thereof, and, on the contrary, alleges that this defendant is the lawful owner and holder of said premises in fee simple, and that she is in the exclusive and rightful possession thereof and has been for more than eight years.
"2. That the remaining allegations of the complaint are denied, except so much thereof as alleges that the Sheriff of Lexington County sold the premises in question on salesday in August, 1915, to satisfy an execution for State and County taxes due thereon for the fiscal year 1914, and that the said Sheriff executed and delivered to this defendant a deed of conveyance to said premises, which was duly recorded in the Clerk of Court's office for said County, in Book 3-O of Deeds, page 20; and this defendant alleges that all the requirements of law relating to the sale of real estate by Sheriffs under tax executions were duly complied with, and that this defendant was put into possession of said premises by said Sheriff, and ever since that time has been in the lawful and exclusive possession thereof, paying the taxes thereon.
"For a Second Defense"1. That plaintiff's alleged cause of action accrued more than two years next before the commencement thereof, and said cause of action is barred by the provisions of law contained in Sec. 525, Vol. III, Code of Laws of South Carolina, being the same as contained in Sec. 474, Vol. I, Code of Laws of South Carolina, 1912, and the action so brought cannot now be maintained in this Court for the recovery of the land alleged to have been sold by the Sheriff or for the recovery of the possession thereof.
"For a Third Defense"1. The facts stated in the complaint as constituting plaintiff's alleged cause of action, as well as the alleged defects in defendant's title, were known and discovered by plaintiff and those under whom she claimed more than six years next before the commencement of this action, and plaintiff's alleged cause of action is barred by the Statute of Limitations.
"For a Fourth Defense"1. That the law of force at the time of the alleged sale of the premises in question by the Sheriff to satisfy an execution against the same for taxes past due thereon, as alleged in the fourth paragraph of the complaint, provided that the owner or grantee or any mortgage creditor might, within six months from the date of such sale, redeem such property by paying to the Sheriff the taxes, penalties, costs, and expenses of said sale, together with 8 per cent. interest on the whole amount of the purchase price of said land so sold under tax execution; and notwithstanding the plaintiff and those under whom she claimed were given notice, as required by law, and had notice, both actual and constructive, that said premises had been levied on, advertised for sale and sold to satisfy the taxes due thereon, and that this defendant had purchased said premises at said sale and had gone into possession thereof under a Sheriff's deed therefor, failed to comply with the provisions of the statute for redeeming said property or to take any other action to recover said property or the possession thereof, or to assert any title thereto at any time before the commencement of this action, and the plaintiff is estopped from asserting any such right, title or claim of, in or to said premises or any part thereof by reason of the laches of herself and those under whom she claims.
"Wherefore this defendant prays judgment that the complaint be dismissed with costs, and that she be adjudged the owner in fee simple of the premises referred to and described in the complaint."
DECREE"By agreement of all parties the above-entitled action was to be heard and tried by me and after hearing argument pro and con, I reserved my decision until I could look into the case for myself.
"The main, and, according to my view, the only question involved in the case is as to the validity of what I will call the `tax deed.' The defendant claims the land in dispute under a `tax deed.'
"The plaintiff claims the land under a deed executed to her by reason of a sale under foreclosure decree. Both parties claim from a common source. Plaintiff attacked the `tax deed' upon several grounds, only one of which need be considered, to wit: That the Sheriff did not comply with the law in reference to selling land under tax execution. In the Civil Code of South Carolina, p. 221, § 522, we find this provision: 'When any real estate is sold for taxes in any County it shall be the duty of the Sheriff, before delivering title to such real estate to the purchaser at such sale, to give not less than thirty days' notice to any mortgagee or assignee of any mortgage appearing of record as interested in such real estate of such sale in order that such mortgagee or assignee may have opportunity to redeem the said real estate, as now provided by law for the owner thereof. Such notice shall either be served on such mortgagee or assignee in person or forwarded to his last known post office address by registered mail, or when his whereabouts may be unknown it may be had by publication upon petition and order as is required for service of summons by publication in civil actions.' By necessary implication the notice under the above-quoted law must be in writing and I am disposed to believe its object, among other things, was to prevent any verbal dispute as to whether the notice was given, which is attempted in this case, for the plaintiff says that he got no notice; the defendant claims that he gave him notice, but not in writing by registered mail as required by the law, and the undisputed evidence shows that notice was not so given. I do not think that notice in any other way than in compliance with the law will be sufficient, especially to sustain a `tax deed' under which the defendant claims is null and void.
"It is therefore ordered, that said tax deed be cancelled of record by the Clerk of the Court in and for the County of Lexington, said State;
"It is further ordered, that the plaintiff pay to the defendant Seventeen and 45/100 ($17.45) Dollars, the amount paid out by him, together with all the money since paid by her for taxes on said land or lots, with interest from the date of payment at 8% per annum from date of payment to the date of this decree."
EXCEPTIONS"1. The Court erred in holding that the only legal notice which could be given under the law to a mortgagee or assignee of such mortgage of the sale of land at a tax sale was by registered mail and that inasmuch as the testimony in this case showed that Dr. Lancaster, who held the mortgage on the property in controversy, was not notified by registered mail and that any other notice which he had received was not sufficient and that in consequence thereof the defendant's tax title to the premises in question was null and void.
"2. For that the Court erred in not holding and deciding that the overwhelming weight of the testimony plainly showed that Dr. Lancaster, plaintiff's testator, was notified both in writing and orally of the sale of the premises in question more than thirty days prior to the time of the delivery of the Sheriff's deed to the defendant and the putting of her in possession of the same and the notice so received by him was sufficient under the laws of this State.
"3. The Court erred in not finding and holding that the plaintiff nor her testator were in possession of the premises in controversy at the time of the institution of this action and could not maintain this action to remove cloud from the alleged title of the plaintiff.
"4. The Court erred in not finding and holding from all the testimony in the case that the defendant was the owner in fee of the premises in question and in the rightful possession thereof.
"5. The Court erred in not holding and deciding that inasmuch as the overwhelming weight of the testimony showed that Dr. Lancaster had received both written and verbal notice of the sale of the premises in controversy more than 30 days prior to the execution and delivery of the tax deed to Mrs. Miller that the plaintiff was estopped from claiming that her testator did not have sufficient notice of the sale of said premises to the defendant by the Sheriff of Lexington County.
"6. The Court erred in not finding and holding that the uncontradicted testimony in the case shows that this action was not brought within two years after the plaintiff went into the possession of the property in question under her tax deed, nor within two years from the time that Dr. Lancaster, plaintiff's testator, was notified both in writing and verbally of the sale of the property in question by the Sheriff of Lexington County, nor within two years after Dr. Lancaster and his attorney, John T. Seibels, had actually read both the original deed from the Sheriff of Lexington County to the defendant and the record thereof in the office of the Clerk of Court of Lexington County, and that plaintiff's action was barred by Section 525 of Vol. 3 of the Code of Laws of this State.
"7. For that his Honor erred in not finding and holding from the testimony in this case that this action was merely an attempt to avoid the provisions of Section 525 of Vol. 3 of the Code of Laws of this State, which inhibits the bringing of an action to recover lands sold under a tax deed within two years from the date of such sale.
"8. For his Honor erred in not finding and holding that this action was not commenced within six years, as appears from all of the testimony in the case from the time Dr. Lancaster, plaintiff's testator, had both written and verbal notice of the sale of the premises in question to the defendant by the Sheriff of Lexington County and had actually read the original deed as well as the record of the same in the office of the Clerk of the Court, and that plaintiff's action was barred by Section 331, Vol. 1, Code of Laws of this State.
"9. That the Court erred in not finding and holding from all the facts and circumstances in this case that the plaintiff and her testator, Dr. Lancaster, were guilty of gross laches in asserting her alleged claim to the premises in question and by reason thereof could not maintain this action.
Messrs. Timmerman Graham, for appellant, cite: As to notice of tax sale: Sec. 522, Code; 118 S.C. 257. Where letter mailed presumption of law is that it was received: 137 S.E., 214; 136 S.E., 30. As to removal of cloud on title: 76 S.C. 517; 97 S.C. 135; 118 S.C. 257. Tax deed prima facie evidence of good title: 80 S.C. 146; 99 S.C. 172. As to recovery, barred here: Sec. 525, Code; 118 S.C. 256; 77 S.C. 541. Delivery: 24 S.C. 596; 119 S.C. 153; 139 S.E., 209; 82 S.C. 265.
Messrs. John T. Seibels, and Efird Carroll, for respondent, cite: As to removal of cloud on title: 15 S.C. 192; 85 S.C. 546; 84 S.C. 256. Presumption as to regularity of tax sale arising from deed may be overcome by recitals in deed itself: 55 Oregon, 89; 22 S.C. 509; 36 S.C. 60; 72 S.C. 273. As to notice of tax sale: 27 Stat., 699. Strict compliance with statute required: 37 Cyc., 1280-81, 1283, 1324, 1327, 1468. Notice: Black on Tax Titles, 155, 206, 338, 341, 343. As to estoppel: 3 C.J., 1059; 43 S.C. 436; 75 Fed., 860; 55 Pac., 750.
April 19, 1929. The opinion of the Court was delivered by
This action by the plaintiff, Ola H. Lancaster, executrix of the last will and testament of Robert A. Lancaster, deceased, against the defendant, Plumie E. Miller, was commenced in the Court of Common Pleas for Lexington County, April 6, 1924, for the purpose of setting aside a tax sale and deed of the Sheriff of said County to the defendant, upon grounds set forth in the complaint, which will be reported. The defendant in her answer, which will also be reported, sets up several defenses.
By order of his Honor, Judge Shipp, the case was referred to the Clerk of Court of Lexington County, as special referee, for the purpose of taking the testimony and reporting the same, and the case was heard by his Honor, Judge J.W. DeVore, who filed a decree dated August 4, 1926, setting aside the deed of the Sheriff to the defendant. From the decree of his Honor, Judge DeVore, the defendant has appealed to this Court.
The exceptions present several questions, but under our view of the case it is only necessary for this Court to consider the questions raised by the third exception. This exception is as follows: "The Court erred in not finding and holding that the plaintiff nor her testator were in possession of the premises in controversy at the time of the institution of this action and could not maintain this action to remove cloud from the alleged title of the plaintiff."
The facts involved in the case pertinent to the questions we shall discuss, briefly stated, are as follows:
August 8, 1912, Pennie Lee Smith executed and delivered unto Dr. R.A. Lancaster three promissory notes, each in the sum of $235, and on said date as security for the payment of said notes executed and delivered unto Dr. Lancaster a real estate mortgage covering the lots of land involved in this suit, which were conveyed to Pennie Lee Smith by Dr. Lancaster on the same date. On the 14th of February, 1916, foreclosure suit having been commenced on the said mortgage, lis pendens was filed. Pennie Lee Smith, the defendant in that suit, defaulted, and a decree of foreclosure was issued in 1916 or 1917, the exact date not appearing in the record, but the land was not sold at that time. It appears that no further steps were taken at that time to get the matter closed up, on account of plaintiff's attorneys being called into military service in the World War. In the year 1918, Mr. Seibels, now of counsel for the plaintiff in the case at bar, represented Dr. Lancaster in trying to clear up the tax question with the Sheriff concerning the land, and also in 1921 as to the same matter; and, pending the enforcement of the decree of foreclosure, in the year 1922, Dr. Lancaster died, leaving of force his last will and testament, which was duly admitted to probate, under which will Mrs. Ola H. Lancaster, widow of Dr. Lancaster, was named the sole legatee, devisee, and executrix, and qualified as such executrix. Thereafter, Mrs. Ola H. Lancaster, as such executrix, was substituted as plaintiff in said foreclosure suit, and on salesday in December, 1922, the said lots of land were duly sold under the said original decree of foreclosure and amended order of sale, by the Clerk of Court of Lexington County unto the plaintiff, and she received from said officer a deed of conveyance to said lots of land.
On July 13, 1915, Sim J. Miller, as Sheriff of Lexington County, by virtue of a tax execution lodged in his office by E.L. Wingard, Treasurer of Lexington County, dated April 26, 1915, levied upon the lots of land in question, as the property of Pennie Lee Smith, and thereafter sold the same at public auction, after advertising the same in the Lexington Dispatch News for the required length of time, to one W.M. Laird for the payment of taxes owing thereon, but before the execution of deed of conveyance the said W.M. Laird transferred his bid to Mrs. Plumie E. Miller, defendant herein, and the Sheriff's deed was thereafter executed unto the said Plumie E. Miller, conveying unto her the lots in question.
On the 6th of April, 1924, the present suit, styled in the transcript as "Complaint to Remove Cloud From Title," was commenced. In the complaint the plaintiff alleges that "the plaintiff has been, and is now the legal owner and holder of fee simple of said lots of land and in possession thereof," and that the "said alleged tax conveyance is invalid, for the reason that the said sale by the Sheriff on which it was based was not in accordance with the law in such case made and provided, and that the delivery of said instrument without notice as required by law to the said Robert A. Lancaster, deceased, as mortgagee, was invalid, and in violation of his rights as mortgagee. That the plaintiff is informed and believes that the said defendant has recently caused a notice reading `For Sale' to be set up on said lots of land, and plaintiff alleges that the existence of said outstanding instrument in the nature of a Tax Deed, and especially the claim thereunder, constitutes a cloud on plaintiff's title." And the plaintiff asked for judgment that the said alleged "Tax Conveyance" be surrendered and canceled.
Judge DeVore held, under the proof in the case, that in making the said tax sale, the Sheriff failed to comply with the law governing tax sales then of force, as to notifying mortgagees, in that there was no proof that written notice was served on the mortgagee in person or forwarded to his last-known post office address by registered mail, etc., and ordered the tax deed canceled, requiring the plaintiff to pay unto the defendant the amount the land sold for at the Sheriff's sale, together with all the money since paid by her for taxes on said lands, with interest at 8 per centum per annum since the date of payment.
It is the contention of the appellant that neither the plaintiff nor her testator was in possession of the land in question at the time of the commencement of this action, and for that reason the plaintiff cannot maintain the action to remove cloud from the alleged title of the plaintiff. According to our view of the case, this contention must be sustained.
The proof is that in the year 1915, the Treasurer of Lexington County issued a tax execution against Pennie Lee Smith for taxes for the year 1914, and after making an effort to collect the taxes and having failed to collect on this execution, the Sheriff seized the land in question, as the property of the said Pennie Lee Smith, went upon the land and posted notice thereon that the lots were seized for taxes, and left the notice posted on the lot showing that the same had been seized under tax execution, and following this act due advertisement of the sale of the lots was published in the Lexington Dispatch News for the required time, and in addition notice of the sale was posted. In accordance with the published notice which appears to have been in due form, the land was offered for sale on the first Monday in August, 1915, and was bid off by W.M. Laird. Later on Mr. Laird assigned his bid to the defendant, who paid in the money and received from the Sheriff deed of conveyance for the land in question. The evidence further shows that the Sheriff, after executing and delivering to the defendant the deed of conveyance, put her into possession of this land, which consisted of vacant lots, and she proceeded at once to exercise authority over the same, and later had the briers cut down and cleared off of the lots, has paid the taxes on the lots each year, and there is ample testimony that she has been in possession of the same from the time she was placed in possession by the Sheriff until the present time, being in possession at the time this action was instituted.
The plaintiff offered in evidence the deed she received from the Clerk of Court and introduced some testimony tending to show she was in possession, but this testimony was not at all conclusive. As contended by respondent, "a party with a valid legal title is presumed to be in possession, and this presumption must be met by party denying same," but under our view of the evidence in the case the defendant has overcome that presumption, and the proof supports appellant's contention that the defendant, and not the plaintiff, was in possession at the time the action was instituted. Therefore, under the authority of the case of Pollitzer v. Beinkempen, 76 S.C. 520, 57 S.E., 475, and Wilson v. Dove, 118 S.C. 256, 110 S.E., 390, this action to remove a cloud on plaintiff's title cannot be maintained.
We do not consider it necessary to pass upon the other question raised by the exceptions, and we express no opinion as to the same.
It is the judgment of this Court that the judgment of the Circuit Court be and is hereby reversed, and the complaint dismissed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.