April 5, 1911. The opinion of the Court was delivered by This is an appeal from an order of the Circuit Court, setting aside an order of the probate court, for a resale of certain lands.
The facts are fully stated, in the order made by the judge of probate, which will be set out, in the report of the case.
The first question that will be considered, is whether his Honor the presiding Judge erred, in overruling the judge of probate's findings of fact.
In a note to Black v. White, 13 S.C. 37, reference is made to the unreported case of Gunning v. Erwin in which the Court said: "The probate court was the proper tribunal, for determining such question of fact, in the first instance; and, having the witnesses before it, had the best opportunity of judging of the weight, that should attach to the testimony of the witnesses, and of drawing proper inferences of fact. The Circuit Court ought not to disturb the findings of the probate court, on questions of fact of *Page 339 that nature unless clear ground is afforded for that purpose."
We are satisfied with the findings of fact by the probate judge, especially as he conducted the sale, and had personal knowledge of many of the facts found by him. Therefore, all the appellant's exceptions, assigning error on the part of his Honor the Circuit Judge, in overruling the findings of fact by the probate judge, should be sustained.
The motion which the plaintiff made, before the judge of probate, for a resale of the lands, was addressed to his discretion, and was not appealable, unless there was an abuse of discretion on his part. State v. Burnside, 33 S.C. 276,11 S.E. 787.
Indeed, we do not understand, that this proposition is controverted as it is sustained by the authorities cited, in the argument of the respondent's attorneys. Therefore, under our view of the testimony, the main question in the case, is, whether there was an abuse of discretion on the part of the probate judge, in ordering the resale.
Section 960 of the Code of Laws provides, that "every judge of probate shall keep the following books, * * * each to be designated by its label as follows * * *:
"`Real Estate,' in which he shall enter all proceedings or orders, in relation to the sale or division of real estate; from the petition to the bond of the purchaser, both inclusive."
Section 837 of the Code of Laws provides, that "the sheriff of every county shall keep and preserve as public records in his office, the following separate books * * * labelled with its appropriate title, to wit:
"A `Sale Book,' in which the sheriff shall enter all sales which he may make under any order, decree, execution or final process of any of the Courts of this State." * * * *Page 340
In the case of Long v. McKissick, 50 S.C. 218,27 S.E. 636, Mr. Chief Justice McIver, in behalf of the Court, uses this language:
"The next position taken by the appellant is, that the entry in the official sale book, was not the original entry, but that the memorandum book, in which the original entry was made, was the best evidence, and should, therefore, have been produced. The law requires the sheriff to enter in his official sale book, and such book affords the best evidence of such sales. The mere fact that a memorandum book, or sometimes a slip of paper, is used at the auctioneer's block, to enter the items of the sale, which are afterwards entered in the official sale book, does not make such memoranda the best evidence of such entries. It is well known, that sales by the sheriff are usually made out of doors, sometimes in bad weather, and to require the sheriff to take a ponderous book, constituting a part of the records of his office, out to the auctioneer's block, and there make the entries in it, the very moment after the sale, would be not only a harsh and unreasonable requirement, but would be far from conducive to the proper preservation of such book, and to the neat and orderly entries, proper to be made in such book. Besides, the authorities show that this position cannot be sustained. * * * In the absence of any evidence to the contrary, we must assume that the sheriff did his duty, and made the proper entries in his sale book, as early after the sale as practicable."
In discussing the proper entry to charge a purchaser, under the statute of frauds, the Court, by O'Neall, J., inElfe v. Gadsden, 1 Strob. 225, states the rule as follows: "That the original memorandum book, was given in evidence, is not, it seems to me in any wise material; for, it is not the sales book; and it is allowable for the sheriff, to keep his private memoranda, and from them to make the entry required by law, in the official book." To the same effect is the case of Christie v. Simpson, 1 Rich. 407. *Page 341 There is no testimony to the effect, that a memorandum of the sale was made by the probate judge who sold the property, at any time whatever; and the reasonable inference from the testimony is, that in any event, an entry had not been made in accordance with the requirements of the statute, when the plaintiffs hurried to the judge of probate, and protested against the inadequacy of the price for which the land was bid off, by the respondent. As there was then, no binding contract, between Cox and the owners of the land, it was the duty of he probate judge to expose the property for sale again, and to entertain bids, for a higher price.
It will thus be seen that it was not the negligence of the plaintiff, but the failure of the probate judge to recognize her rights, that deprived her of the opportunity, to bid for the land. And, the injustice which she suffered, demanded reparation, which was granted to her, when the judge of probate, in the exercise of the wise discretion reposed in him, ordered a resale.
In the case of State v. Burnside, 33 S.C. 276,11 S.E. 787, the Court used the following language in reference to the court of probate: "The Court will relive against the mistake of the party, bad faith on the part of the officer making the sale, or the negligent mistake on the part of theofficer, and in every case where it would be inequitable, thatthe sale should stand. American Ins. Co. v. Oakley, 9 Paige 59. One of the things most desired and promoted in judicial sales, is free and full competition, so that property may sell for its full value; hence the policy of the law, in setting aside such sales, where there is fraud or mistake, or the biddings have been chilled, etc., etc." (Italics ours.)
The respondent's attorneys, however, rely upon the case of Young v. Teague, Bailey's Eq. 13 (cited with approval in Ex parte Cooley, 69 S.C. 143). In that case the principle was announced that it is not a sufficient ground for setting aside a judicial sale, that one of the parties interested *Page 342 intended to bid higher, but neglected to do so, or was prevented by a mistake, at the time of the sale, if neither the officer making the sale, nor the purchaser, contributed to the mistake, and the sale was fair and regularly conducted; and it makes no difference that some of the parties were minors.
In that case, the application for a resale, was made after the execution and delivery of the deed, and reasons are therein assigned for the conclusion of the Court, that are inapplicable to the case under consideration. That case, however, recognizes the well settled doctrine, that the sale will be set aside, when the neglect or mistake of the officer offering the land for sale, has contributed to prevent competition in bidding. Ex parte Cooley, 69 S.C. 143,48 S.E. 92.
In the case of Yates v. Gridley, 16 S.C. 496, the Court recognizes the fact, that the resale was refused in the case of Young v. Teague, Bail. Eq. 13, principally on the ground that the deed had been executed when the application was made, and then says: "The English practice of opening the biddings before confirmation does not apply in this State. When titles have been executed in this State at official sales, they are good without confirmation, unless assailable for fraud or other facts and circumstances, entitling the party to equitable relief."
As the Court is equally divided in opinion, the judgment of the Circuit Court stands affirmed.
MR. JUSTICE WOODS concurs in the conclusion of MR. JUSTICE GARY.
MR. CHIEF JUSTICE JONES thinks the judgment of theCircuit Court should be affirmed.