Latimer v. Wharton

Citations

• 41 S.C. 508
• 19 S.E. 855
• 1894 S.C. LEXIS 130

Syllabus

<p>1. Judicial Sale — Failure oe Consideration. — The rights of a purchaser of land at a sale made by the commissioner under decree of the Court of Equity, where the consideration has failed, and the question of implied warranty at such a sale, considered, the decisions in this State reviewed, and the following rules declared :</p> <p>(1) That the equity of the purchaser to relief by reason of failure of consideration can be set up only as a defence to action for the purchase money.</p> <p>(2) That if the sale was made under compulsory process, such defence, in the absence of fraud or misrepresentation, will not be considered:</p> <p>(3) But may be where the sale was not under compulsory process, as, e. g., in partition cases.</p> <p>2. Cases Criticised. — Rogers v. Horn, 6 Rich., 361, declared to have been overruled, and Mitchell v. Pinckney, 13 S. C., 203, explained and limited.</p> <p>3. Judicial Sale — Failure oe Consideration. — -The purchaser of land sold under decree of the Court of Equity for the purpose of paying the debts of testator, gave bond and mortgage for the purchase money. On default in payment, he was sued and judgment obtained, failure of consideration not being pleaded in defence; after which, but before payment, the land so purchased was recovered by title paramount, and the execution on such judgment was levied on other property of this purchaser. Held, that the court would not enjoin a sale under this levy on the complaint of this purchaser.</p>