Johnson v. Jones , 72 S.C. 270 ( 1905 )

August 1, 1905. The opinion of the Court was delivered by The plaintiffs brought this action to set aside a deed executed on the 17th of September, 1902, by Mrs. Nancy Stevens to the defendant, on the ground that Mrs. Stevens did not have mental capacity to make said deed. The answer of the defendant raised an issue of title. She alleged that independently of said deed she was the legal owner of the land, under the will of her father, William Stevens, by which he devised the land to her in remainder. His Honor, the Circuit Judge, rendered a decree in which he held that the deed was null and void, but that the defendant was the owner of the land in fee. The facts are fully stated in the decree which, together with the appellants' exceptions, will be set out in the report of the case.

The appellants' attorneys contend that the issues are only equitable; and, in any event, that the findings of fact by the Circuit Judge can be reviewed by this Court. The defendant in her answer specifically denies that Mrs. Nancy Stevens during her lifetime had legal title to and was seized and possessed in fee thereof. She also set up the following defense: "This defendant alleges that she is the legal owner in fee simple of the land described in the complaint, and that the plaintiffs in this action have taken possession of said tract of land, and withhold the same from this defendant, who is the legal owner thereof." This was sufficient to raise the legal issue of title. Bank v.Peterkin, 52 S.C. 236, 29 S.E., 546; Corbett v. Fogle, Part 312. The following cases show conclusively that the findings of fact pertaining to the issue of title cannot be reviewed by this Court: Johnson v. Johnson, 44 S.C. 364,22 S.E., 419; Peoples v. Warren, 51 S.C. 560,29 S.E., 52; Garvin v. Garvin, 55 S.C. 360, 33 S.E., 458; Corbett v. Fogle, Part 312.

We will first consider the exceptions assigning error on the part of the Circuit Judge in ruling that the failure to proceed against the personal property for the non-payment of the taxes, before offering the lands for sale as delinquent, was a fatal defect, which rendered null and void the deed executed by the Sinking Fund Commission to Mrs. Nancy Stevens. A similar question arose in the case of Ebaugh v. Mullinax, 34 S.C. 364, 374,376, 13 S.E., 613. After quoting sections 9 and 10 of the act of 1880 (17 Stat., 380), under which the tax in that case was levied, the Court uses this language: "From an examination of those two sections, it seems to us that before any real estate can be sold at a delinquent land sale, besides other requirements which need not be mentioned here, as it is conceded that all the other requirements were complied with, that an unsuccessful effort must have been made to enforce the payment of the taxes on the land by distress and sale of the personal property of the defaulting taxpayer; and this can be best evidenced by issuing an execution against the personal property and showing that it had been returned nulla bona." Further on, the Court says: "It seems to us that the true construction of the 9th section of the act is, that when taxes upon any property, either real or personal, are unpaid on the day appointed for that purpose, the county treasurer must first proceed to enforce payment by distress, and if that mode proves unavailing by a day specified, then, and not before, the land may be placed on the delinquent land list and disposed of as provided by law; and that the purpose of section 10 was to declare what kind of property — personal property — should be liable to distress and sale for the non-payment of taxes, whether assessed upon either real or personal property. The scheme of the tax laws seems to be that, in enforcing the payment of taxes upon any species of property, the personal property of the defaulting taxpayer must first be exhausted before the sovereign right to sell the land — perhaps the homestead — can be exercised."

The Court, in Curtis v. Renneker, 34 S.C. 468, 495,13 S.E., 664, construing statutory provisions similar to those in the present case, thus states the principle: "It only remains to consider the question as to the tax title. It being conceded that no execution or distress warrant had ever been issued to enforce payment of the taxes in arrear out of the personal property of the taxpayer, we think the question is concluded by our decision in Ebaugh v. Mullinax, ante, 364, and we refer to that case for the reasons upon which we rest our conclusion. It is true that in that case the question arose out of the failure to pay the taxes for the year 1880, while here the taxes in arrear were those for the year 1877; but as it is conceded that the terms of the two acts under which the taxes for those two years were levied are identical, so far as this matter is concerned, the reasoning in that case is appllicable here. Without considering any of the other alleged defects in the tax title, we think the failure to issue the execution against personal property was fatal." These authorities are conclusive of the question under consideration.

We will next consider the question whether the Circuit Judge erred in ruling that William Stevens was not estopped by his conduct, in bidding off the property in the name of his wife. If, when he bid off the property as aforesaid, the proceedings under which it was exposed for sale had not been fatally defective, she would have acquired an equitable right paramount to his title, and the deed executed by the Sinking Fund Commission would have had relation back to the time of the bid, although William Stevens had, in the meantime, died. Furthermore, if William Stevens had by his conduct induced action on the part of Mrs. Nancy Stevens by which she incurred the expenditure of money, or by which she changed her position to the prejudice of her rights, he would have been estopped from asserting his title, against her rights. But the Circuit Judge finds "that there is no proof whatsoever that her money was paid; and the proof to the contrary is that he paid the money and there is no pretense of proof that she, because of what was done at that sale, changed her position in any way, or went to any expenses or expenditure because of the act which is claimed as an estoppel against William Stevens, nor is there any proof that she was prejudiced in any other way thereby, * * *." He also finds that Mrs. Stevens was cognizant of the fact that William Stevens was the owner of personal property which was more than sufficient to pay the taxes on the land. Under these circumstances, the doctrine of estoppel cannot be invoked.

If William Stevens was instrumental in having the land offered for sale as delinquent, with the intention of hindering the enforcement of a judgment recovered against him, and the deed had been made during his lifetime, quite a different question would be presented from that under consideration. In that case he would not have had the right to the aid of the Court in the exercise of its chancery powers to set aside the deed, but equity would have left the parties where it found them — with the legal title to the land in Mrs. Stevens. The rights of the parties must be determined as they existed at the time of his death, at which time the legal title was in him. Mrs. Stevens could not then have asserted her equitable right against him, because the proceedings under which the land was offered for sale were fatally defective. Even in that case, if the deed had been made during his lifetime, it might be said that the deed was, in effect, his act, under and by virtue of the power conferred by him on the officers of the law, or he might have ratified the sale. But the deed executed after his death could not be referred to the proceedings under which the land was sold, because they were fatally defective. Nor could it be referred to the power conferred by William Stevens on the officers of the law, because if there was such a power it was revoked by his death. Johnson v. Johnson, 27 S.C. 309,3 S.E., 606; Givins v. Carroll, 40 S.C. 413, 18 S.E., 1030;Williams v. Washington, 40 S.C. 457, 19 S.C. 1.

These conclusions practically dispose of all questions presented by the exceptions that are properly before this Court for consideration.

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