This is an appeal from an order of his Honor, Judge Wilson, in a proceeding instituted by P.M. Parrott as trustee who appears to have succeeded to the rights of the Clerk of Court of Clarendon County, against Joseph S. Dickson, to require him to comply with the terms of a certain judicial sale made by the *Page 125 Clerk of Court, at which Dickson bid off certain lots. The proceedings consisted of a petition, rule to show cause, return, and certain affidavits.
It appears that in the year 1919, Kate Walker brought an action against Leon Walker et al., for the partition of certain real estate in the town of Manning, which had belonged to B.A. Walker, deceased. It resulted in a decree of sale directing the Clerk of Court, through the agency of a dependable auction company, to sell the property. At the sale in March, 1920, the appellant Dickson bid off two lots at $3,380, and paid the cash portion, $1,130 in cash.
The Clerk prepared the form of a deed from himself to Dickson covering the lots and notes and a mortgage from Dickson to him securing the unpaid portion of the purchase price. These papers were never in fact executed by either party, no demand therefor by either having been made upon the other. Dickson never paid or offered to pay the balance of the purchase price; no report was made by the Clerk of such failure; the property was not readvertised or resold; Dickson never went into possession of the lots, apparently preferring to lose what he had paid rather than pay the balance and take title. The matter was allowed to sleep until the Clerk of Court went out of office, and at a later date, exactly when does not appear, in some kind of a proceeding, not defined, Parrott was appointed by the Court of Common Pleas trustee of the notes and mortgages connected with the partition proceedings. On July 22, 1926, more than six years after the sale, Parrott instituted the present proceedings. No explanation of the long delay in the matter has been presented to the Court. It is easy to comprehend Dickson's indisposition to complete the transaction, as the property had steadily decreased in value due to the general deflation; but not so in reference to the Clerk and the parties who were interested in the proceeds of the sale or their attorneys.
The appellant, Dickson, made a return to the rule to show cause, setting up various defenses, only two of which, in my *Page 126 view of the case, need to be considered: The Statute of Frauds and the Statute of Limitations. His Honor, Judge Wilson, on May 12, 1927, signed the following order:
"This matter comes on before me upon the verified petition and the return, rule to show cause and affidavits.
"After hearing arguments of counsel for petitioner and for respondent,
"It is ordered, that the said Joseph S. Dickson, respondent, shall forthwith pay to P.M. Parrott as trustee, petitioner, the sum of Twenty-two Hundred and Fifty Dollars, with interest thereon from the first day of March, 1920, at the rate of seven per cent. per annum, and that the said P. M. Parrott as trustee shall upon receipt of the aforementioned sum of money make and deliver unto Joseph S. Dickson, the respondent, a deed to the premises described in the petition, conveying unto the respondent a fee-simple title to said premises."
From it Dickson has appealed upon exceptions which fairly raise the questions hereinafter considered.
I. The Statute of Frauds. — The appellant contends that there was no such memorandum of the sale made by the auctioneer at the time of the sale as would satisfy the requirements of the Statute. He attempted to sustain this contention by the affidavits of two purchasers of other lots at the sale; both of whom deposed that the auctioneer made no written entries of any sales and had no purchaser to sign a memorandum card of his purchase. Against this contention were the affidavits of the auctioneer and the attorney for the plaintiff. Both deposed to entries made by the auctioneer and the signing of memorandum cards of their purchases by the purchasers. Unfortunately the book containing the entries and the memorandum cards has been lost. The testimony of the auctioneer was to the effect that he "had a book in which was entered the number of the lot, the amount of the bid, terms of sale and the name of the purchaser, and that each purchaser signed a card containing all of this data. * * * *Page 127 That after deponent accepted the bid of the said Joseph S. Dickson, the same was entered in the aforesaid book and the purchaser signed one of the aforementioned cards."
In the absence of the lost book and memorandum cards, the extent of the entries is defined in the testimony of the auctioneer, and it fails to show the entry of the name of the seller.
In 20 Cyc., 258, it is declared: "In order to render an oral contract falling within the scope of the Statute of Frauds enforcible by action the memorandum thereof must state the contract with such certainty that its essentials can be known from the memorandum itself, or by a reference contained in it to some other writing, without recourse to parol proof to supply them. * * * Thus an auctioneer's memorandum must in itself or taken in connection with the proper captions in the entry book contain the essential terms of the contract of sale. So, a receipt for money, if relied on as a memorandum, must state the essentials to the agreement. * * * The parties to the contract cannot be left to be shown by parol but must be stated in the memorandum. Thus in a memorandum of a contract for sale it must appear who is the buyer and who the seller." In note, at page 262, it is said: "An auctioneer's memorandum must show who is the vendor, or who is the vendor's agent on account of whom the auctioneer makes the sale."
In Nichols v. Johnson, 10 Conn., 192, the memorandum was a book on the cover of which was written "A's memorandum of B's property received by assignment," and on a leaf of the book under the caption, "Sales at Auction, March 6, 1826," was this entry, "B's right in C's estate, sold to D, $60"; in an action by the auctioneer against D for the purchase money, it was held that the memorandum did not show with requisite certainty that A, the auctioneer, was the vendor of the estate sold.
In Frank v. Eltringham, 65 Miss., 281, 3 So., 655, the Court said: "The note or memorandum of the bargain is not *Page 128 sufficient. * * * It fails to show who is seller and who is buyer."
See, also, O'Sullivan v. Overton, 56 Conn., 102,14 A., 300; Banta v. Newbold, 108 Kan., 578, 196 P., 433; Mentzv. Newwitter, 122 N.Y., 491, 25 N.E., 1044, 11 L.R.A., 97, 19 Am. St. Rep., 514; Peoria Co. v. Babcock (C.C.), 67 F., 892; Grafton v. Cummings, 99 U.S. 100,25 L.Ed., 366.
It does not seem necessary to cite any other authority upon the proposition than the case of Ruff v. Hudspeth, 122 S.C. 391,115 S.E., 626, though perhaps 100 could be cited. In that case the Court held: "That the memorandum so required to be in writing must contain all the essential elements of a contract is too well settled in this and other jurisdictions to require the citation of authority. It requires two parties to make a contract. That a writing which names one party and does not indicate who the other party is does not set forth an essential element of the contract would seem to follow as a necessary sequence. Hence, the conclusion that the names of the vendors, or some designation of them which can be recognized without resort to parol proof, is an essential part of such a contract for the sale of real estate as will fulfill the requirements of the Statute of Frauds is approved by the great weight of authority." To sustain this proposition the Court by Mr. Justice Marion cites Grafton v. Cummings,99 U.S. 100, 25 L.Ed., 366, and a wealth of other authority.
II. The Statute of Limitations. — The sale was had in March, 1920; the present proceeding was instituted in July, 1926, more than six years after the right of action on the part of the Clerk accrued. The question is: Is it barred by the lapse of time?
There are certain propositions announced in the opinion of Mr. Justice Blease which I do not think are open to question, but which I do not think affect the question of the limitation of the action. *Page 129
When Dickson became the successful bidder at the sale, he became a quasi party to the original partition suit, and was chargeable with all proceedings had thereafter in the case. By his assumed connection with the case he was entitled to move in the case for such relief as he might consider himself entitled to; and he was subject to be moved against by the officer making the sale or by the parties interested therein. His relief, if he had desired to insist upon it, consisted of a demand for the execution of a deed upon his complying with the terms of the sale. That right accrued immediately, and it seems manifest that it would be barred after the expiration of the statutory period of six years. The relief to which the other side would have been entitled consisted of a demand upon him to comply and a tender of a deed. The other side had double remedies to enforce their rights: A rule upon Dickson for an order requiring him to comply or submit to a resale of the property at his risk; and an action for the specific performance of the contract into which he may have entered. The former remedy was available because of Dickson's relation to the case created by his bid; the latter was not superseded by the availability of that remedy. Peakev. Young, 40 S.C. 41, 18 S.E., 237. Both remedies are based upon precisely the same equitable principles.
While strictly speaking the Court of equity will not apply the Statute of Limitations as would be applied by a Court of law in a law case, the result is practically the same, as appears from the following exposition found in 17 R.C.L., 737: "Although the Statute of Limitations does not apply to demands which are purely equitable or where the jurisdiction of Courts of law and equity is not concurrent, Courts of equity nevertheless frequently act on the analogy of the Statute of Limitations and in harmony with the maximequitas sequitur legem, provided the bill is one for relief as distinguished from the class of bills which are not deemed bills for relief. In such cases, chancery is said to act in obedience to the spirit of the Statute, and to adopt the reasons *Page 130 and principles on which it is founded, rather than its literal requirements. In harmony with this fundamental principle, a Court of chancery may refuse its aid when, from the lapse of time, an action at law could not be maintained, but, on the other hand, under ordinary circumstances a suit in equity will not be barred by laches before the time fixed by the analogous Statute of Limitations at law. One way of expressing this rule is to say that chancery courts adopt the time fixed by Statutes of Limitations for barring claims at law in analogous cases as the period at the end of which they will conclude a recovery in equity. Thus it is that Courts of equity, action independently of any Statutes of Limitation, nevertheless refer frequently to these Statutes for no other purpose than as furnishing a convenient measure for the length of time that ought to operate as a bar in equity of any particular demand. In other words, in practical effect, a chancellor applies the Statute of Limitations with the same substantial effect and same construction as it receives in Courts of law."
The rule governing a Court of equity in the matter of specific performance is thus expressed in 17 R.C.L., 743: "A party coming to a Court of equity for specific performance must show that there are equity and good conscience in support of his claim to relief, and that his application is made within reasonable time, in view of all the circumstances of the case."
I do not think that the petitioner has brought himself within this principle. For some unaccountable reason the matter has been delayed for more than six years. I do not think that it was incumbent upon Dickson any more than upon the Clerk to move, if he was not anxious to acquire the property. If he had waited six years to tender the balance of the purchase price and demand a deed, and in the meantime real estate had increased in market value, the Court would not have listened to his demand for a moment. The same rule should be applied to the other side when conditions *Page 131 have been reversed. The plaintiff is in Court demanding relief; the burden is upon him to establish his right to it, which I do not think under the principles of law he has done.
The decree is not in proper shape anyhow; if the petitioner should be adjudged entitled to any relief, it should have been to an order of resale at the risk of the former purchaser, and not what it practically is, a decree for specific performance, when the petition did not ask for it.
I think, therefore, that the decree should be reversed, and the petition dismissed.