Opinion
15023
February 23, 1940.
Before MANN, J., Orangeburg, March, 1939. Affirmed.
Action by C.H. Dixon, as Receiver of The Edisto National Bank at Orangeburg, S.C. against O.T. Williams, J.A. Sandifer and Earl Matthews, to foreclose a contract to purchase realty. From decree entered, O.T. Williams appeals, and the appeal is opposed by Earl Matthews.
Order of Judge Mann follows:
This matter comes on to be heard before me on exceptions filed by the defendant, Earl Matthews, to report of C.E. Summers, as Special Referee, dated March 13, 1939, in which he found that the line "D" "C" on a plat or sketch setting forth the line in dispute as claimed by the defendant, O.T. Williams, is the dividing line separating the tracts of two hundred (200) acres contracted for by the defendant, Earl Matthews, and the tract of three hundred and fifty (350) acres contracted for by the defendant, O.T. Williams, which is a line contended for by the defendant, O. T. Williams, and extends along the Garrick line in a substantially eastern and western direction and thence cuts in in a northwesterly direction behind the Garrick property to form an irregular tract, as that described in the contract of the defendant, Earl Matthews; that both the defendants, Earl Matthews and O.T. Williams, are in default under the terms and conditions of their contract and that the contract should be declared null and void as to both of the defendants.
After duly considering the exceptions and the entire record in the case, by giving due weight to the fact that the Special Referee "saw the witnesses, heard the testimony delivered from the stand and had the benefit of that personal observation of and contact with parties and witnesses which might be of peculiar value in arriving at a correct result," I have reached the conclusion that all of the exceptions should be sustained.
It appears to me that, after having read all of the testimony, examined all the exhibits and given the case very careful consideration, the line in dispute should extend under the description as is carried as that part of the tract of land which is being purchased by the defendant, Earl Matthews, and should extend straight back along the Garrick line and thence straight into the river at approximately right angles, and which is the contention of the defendant, Earl Matthews. That this line should extend far enough back and along the line which is designated on a sketch thereof made by S.D. Moss, registered surveyor, as line "A" "B" and thence into the river swamp so as to make and include a tract of two hundred (200) acres, forming a rectangular tract of land with approximately straight lines on three sides and the river, as is contracted for by him, which I think is the correct line under the description, made in the contract for purchase.
I further conclude that the defendant, Earl Matthews, is not in default and that under the uncontradicted testimony he has duly tendered the purchase price agreed to, was in no wise responsible for the delay, and has always been ready and willing to comply with his part of the contract and to pay the balance thereon and, therefore, should not be held, as is found by the Special Referee, to be in default and his contract null and void. That C.H. Dixon, as Receiver of The Edisto National Bank of Orangeburg, S.C. the substituted plaintiff herein, should execute to the said Earl Matthews a title for the lands found to be his in this decree upon payment of the balance of the purchase price as is fixed in the contract, without a penalty or interest or other charges thereon.
Now, therefore, on motion of Messrs. Lide Felder, attorneys for the defendant, Earl Matthews, it is ordered, that the plaintiff herein, C.H. Dixon, as Receiver of The Edisto National Bank of Orangeburg, S.C. be, and he is hereby, directed to execute and deliver unto the defendant, Earl Matthews, upon payment by him of the purchase price set forth in his contract, and referred to in this matter as the contract of J.A. Sandifer, and on which there is due the balance of Nineteen Hundred ($1,900.00) Dollars, and which he has tendered heretofore, the premises described in his contract and which are set forth and described on a sketch of the land made by S.D. Moss, registered land surveyor, as the two hundred (200) acres extending between the lines "A" to "B" and thence at right angles to the margin of the swamp.
Further ordered, that the report of the Special Referee herein, insofar as it does not conflict with the terms and conditions as expressed in this order, be, and the same is hereby, confirmed and made the judgment of this Court.
Messrs. Zeigler Brailsford, for appellant O.T. Williams, cite: Parol testimony: 89 S.C. 398; 71 S.E., 991; 111 S.C. 516; 99 S.E., 108; 40 S.C. 134; 18 S.E., 680; 82 S.C. 441; 64 S.E., 400.
Messrs. Lide Felder, for respondent Earl Matthews, cite: Parol testimony: 22 C.J., 1183; 66 S.C. 61; 44 S.E., 380; 57 S.C. 60; 35 S.E., 415.
Mr. Julian S. Wolfe, for plaintiff.
February 23, 1940. The opinion of the Court was delivered by
In the description of the tracts of land involved herein, except in a most general way, the points of the compass were ignored, and the boundaries carelessly and inadequately given.
It is true that if the plat is strictly followed, the only way that lands of General Land and Investment Company could be one of the northern boundaries of respondent's land would be for the dividing line to run as claimed by appellant, but from the careless manner in which the other boundaries of both tracts of land are given in the contracts of purchase, it is plausible that the Holman Bridge Road was overlooked and the lands of General Land and Investment Company across this road given as a northern boundary.
From a careful consideration of the record before us, we cannot say that the trial Judge was in error in his conclusions, and his decree, which will be reported, is therefore affirmed.
MR. CHIEF JUSTICE BONHAM, MESSRS. JUSTICES CARTER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.