Opinion
14777
November 29, 1938.
Before GRIMBALL, J., Charleston, January, 1938. Affirmed.
Action by Gladys Porter against C.H. Washington for possession of certain realty occupied by defendant. From an order confirming the Master's report in favor of plaintiff, defendant appeals.
The Master's report follows:
This case was referred to me by order of Hon. M.M. Mann, on September 23, 1936, wherein the plaintiff seeks possession of certain real estate, the subject matter of this suit, located in Christ Church Parish, Charleston County, S.C. under and by virtue of a deed from the Forfeited Land Commission of Charleston County to the plaintiff.
I have held references, the minutes of which together with the exhibits are herewith filed.
Plaintiff alleges, among other things, that on or about the 16th day of January, 1936, she purchased from the Forfeited Land Commission of Charleston County the property described in the third paragraph of the complaint; that thereafter she notified the defendant of the fact that she had purchased the property, claiming to be the owner, and demanded immediate possession of the said property. The defendant, C.H. Washington, however, refused to comply with her demand and remained in possession of the property.
The defendant sets up as a defense to the suit that the plaintiff purchased from the Forfeited Land Commission property other than the real estate she now claims to have purchased and denies that he is holding the land of this plaintiff.
The testimony reveals that on March 2, 1922, the sheriff of Charleston County issued his certificate to J. Henry Moessner as a special deputy for the service of process in the matter of tax exceptions and for the making of levies and taking possession of property of defaulting taxpayers, etc.
The testimony further shows that J. Henry Moessner received from the sheriff's office a tax execution directed against the real estate in the name of C.H. Washington located in Christ Church Parish, Charleston County, S.C. Mr. Moessner testified that armed with this tax execution and with his authority to act as a special deputy of the sheriff of Charleston County, in making tax levies, he did enter upon the property of the defendant, C.H. Washington, took possession of the same by placing a seal on the dwelling house standing on the property, and thereafter he personally saw the defendant and had several conversations with him relative to these unpaid taxes.
The testimony further shows that the property owned by the defendant was levied upon under tax execution for the years 1930, 1931, 1932, which said taxes were due and unpaid at the time of the levy. The sheriff's sales book shows that the property was sold by the sheriff of Charleston County to the Forfeited Land Commission for unpaid taxes for the years 1930, 1931, 1932, on the first Monday in November, 1933, and that a deed was executed and delivered unto the Forfeited Land Commission on March 28, 1935.
The evidence further discloses that on the 16th day of January, 1936, the Forfeited Land Commission executed and delivered to the plaintiff its deed of conveyance conveying the property described in the third paragraph of the complaint herein for and in consideration of the sum of forty-one dollars, which said deed was recorded in the R.M.C. office for Charleston County on the 31st day of January, 1936, in Book X-38, page 107.
I find that the real estate sold by the sheriff of Charleston County was the real estate described in the third paragraph of the complaint herein. I further find that the property was properly levied upon by a proper officer, and duly and regularly sold by the sheriff of Charleston County to the Forfeited Land Commission, who thereafter conveyed the property to the plaintiff herein, and she is now the owner in fee simple of the said premises described in the third paragraph of the complaint, which is the subject-matter of this suit.
I, therefore, respectfully recommend that the Court authorize and direct the sheriff of Charleston County to place the plaintiff, or her duly authorized agent, into possession of the said premises and that the defendant, C.H. Washington, and his heirs and assigns, be forever restrained and enjoined from entering upon the said premises with the intent or purpose of claiming any right, title, or interest in or to the same.
Mr. A.L. Hamer, for appellant, cites: As to levy on personal property before going upon realty for taxes: Secs. 2833, 2853, 2855, Code 1932; 72 S.C. 270; 95 S.C. 295; 184 S.C. 76; 194 S.E., 143.
Mr. C.R. Burbage, for respondent, cites: Valid levy: Sec. 2160, Code 1932; 31 S.C. 547; 10 S.E., 330; 185 S.E., 913.
November 29, 1938. The opinion of the Court was delivered by
The plaintiff asks in this case to be put in possession of certain premises occupied by the defendant. It appears from the agreed statement of fact that the action was commenced on August 9, 1936, by service on Washington of a motion to quit, and that his answer and return thereto raised the question of title. It also appears that the plaintiff then served her complaint, in which she alleged that she purchased the real estate described therein, six acres of land with buildings thereon, from the Forfeited Land Commission of Charleston, the owner in fee simple; that this property had been levied upon and sold for taxes under an execution issued in the name of the defendant, and was thereafter duly conveyed to the land commission. The answer to the complaint was a denial that the real estate claimed by plaintiff in this action was ever sold for taxes or purchased by her as alleged. The matter was referred to the Master in equity for Charleston County. After holding several references, he filed a report, in which he found as a matter of fact that the contentions of the plaintiff were true, and recommended that she be put in possession of the premises in dispute. On exceptions by the defendant, the matter was heard by his Honor, Judge Grimball, and from his order confirming the report, this appeal was taken.
While the transcript of record is not as full and satisfactory as might be desired, we think, from an examination of it, that the findings of the Master are sustained by the evidence; and that the questions raised by defendant's exceptions in the Court below — and renewed here on appeal — were properly disposed of by the Circuit Judge. The appellant did not attempt to show on the hearings before the Master what personal property, if any, he owned at the time the real estate in question was sold under the tax execution. In fact, the only contention set up in his answer, as we have indicated, and to which the testimony offered by him before the Master was directed, was that the tract of land which the plaintiff claimed she had purchased was not the real estate which had been sold for taxes, as alleged by her. The Master found, however, that the premises levied upon and sold under the tax execution was the property of the defendant; that a valid levy and sale were made, and that in due course the property was sold to the Forfeited Land Commission, which thereafter conveyed it to the plaintiff. All findings of fact of the Master, as we have said, were concurred in by the Circuit Judge, and there was some testimony to sustain such findings.
As to the contention of the appellant that a survey of the land in question should have been ordered by the Court, it does not appear from the record that a survey was asked for by the defendant at any hearing had before the Master. And in view of the testimony already referred to, no good reason appears why the Court should have ordered a survey of its own motion, if at all.
We are satisfied with and approve the findings and conclusions of the Master, and his report will be incorporated in the report of the case.
The order of the Circuit Judge is affirmed.
MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.