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24960 - Ryan Investment Co., Inc. v. Richland County

Shearouse Adv. Sh. No. 22
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

In re: Ryan Investment

Co., Inc., Debtor,



Charles P. Summerall,

IV, Trustee for Ryan

Investment Co., Inc., Plaintiff/Appellee,

v.

Richland County, a

political subdivision of

the State of South

Carolina, and Jeremiah

Davis, Defendants,

Of whom Jeremiah

Davis is Defendant/Appellant.

Opinion No. 24960

Heard April 6, 1999 - Filed June 28, 1999

CERTIFIED QUESTION ANSWERED

Reid B. Smith, of Columbia, for defendant/appellant.

Julius H. Hines, of Buist, Moore, Smythe & McGee,

P.A., of Charleston, for plaintiff/appellee.





MOORE, A.J.: Ryan Investment Co. (Debtor Corporation)

owned real property in Richland County that was sold at a tax sale for

p.18


In re: Ryan Investment Co., Inc.,





failure to pay 1992 taxes. The successful bidder assigned its bid to

defendant/appellant Davis (Buyer). Debtor Corporation subsequently filed

for relief in Bankruptcy Court. Plaintiff/appellee (Trustee) moved to set

aside the tax sale on the- ground the Richland County Treasurer had failed

to comply with statutory mailing requirements for the notice of

redemption. The Bankruptcy Court invalidated the tax sale and Buyer

appealed to the District Court. This case is now before us on certification

to answer the following questions:



1. Do the postal regulations excuse compliance with

the restricted delivery requirements of § 12-51-120

of the South Carolina Code of Laws, where the

owner of record is a corporation?





2. If the above question is answered in the affirmative,

must there be compliance with the restricted delivery

requirements where the owner of record is a corporation

but where a natural person has been designated as the

recipient of tax notices for the corporation?





DISCUSSION



At the time the redemption notice was mailed in this case, S.C. Code

Ann. § 12-51-120 provided that such notice must be sent to the owner of

record by "certified mail, return receipt requested- deliver to addressee

only."1 The Richland County Treasurer mailed the redemption notice by

certified mail, but did not restrict delivery to the addressee. The notice

was addressed:

Ryan Investment Co., Inc.

c/o H.H. Bresky

200 Boyleston Street, #325

Chestnut Hill, MA 02167

Buyer contends postal regulations do not allow restricted delivery

when the addressee is a corporation. He cites United States Postal

Services Domestic Mail Manual, §S916.1.1, which provides: "Restricted

delivery service permits a mailer to deliver only to the addressee or

addressee's authorized agent. The addressee must be an individual (or


1 This section was amended in 1996 to substitute the phrase "restricted

delivery" for "deliver to addressee only." The meaning is the same.

p.19


In re: Ryan Investment Co., Inc.,





natural person) specified by name."2 Accordingly, Buyer argues non

compliance with the restricted delivery requirement of § 12-51-120 should

be excused as a matter of law. We disagree.





Tax sales must be conducted in strict compliance with statutory

requirements. Dibble v. Bryant, 274 S.C. 481, 265 S.E.2d 673 (1980).

Even actual notice is insufficient to uphold a tax sale absent strict

compliance with statutory requirements. South Carolina Fed. Sav. Bank

v. Atlantic Land Title Co., 314 S.C. 292, 442 S.E.2d 630 (Ct. App. 1994)

(citing Aldridge v. Rutledge, 269 S.C. 475, 238 S.E.2d 165 (1977)). The

failure to mail a redemption notice by restricted delivery mail is ground to

invalidate a tax sale. Manji v. Blackwell, 323 S.C. 91, 473 S.E.2d 837 (Ct.

App. 1996).







In light of this strict compliance rule, we find postal regulations in

and of themselves cannot excuse the failure to comply with statutory

mailing requirements. We hold attempted compliance with statutory

mailing requirements is required before non-compliance can be excused.

The party seeking to excuse non-compliance must demonstrate facts

indicating attempted compliance before the Court will consider the

adequacy of the mailing actually accomplished. Cf Hawkins v. Greenwood

Dev. Corp. 328 S.C. 585, 493 S.E.2d 875 (Ct. App. 1997) (party asserting

impossibility of performance as defense to contract has burden of showing

that the thing to be done cannot by any means be accomplished).





Here, there are no facts showing an attempt to have the Post Office

deliver the redemption notice by restricted delivery to Debtor Corporation

and therefore non-compliance with § 12-51-120 is not excused. In light of

this conclusion, we decline to address the second certified question. Since

no attempted compliance has been shown, we need not consider what

alternative mailing would otherwise be adequate.





CERTIFIED QUESTION ANSWERED.



FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.




2 The certified facts in this case, however, indicate two instances where

the Post Office apparently delivered notices by restricted delivery to

corporations.

p.20