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2005-UP-097 - Bing v. Devore

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Beatrice Devore Bing and Theadie Mae Devore White,        Appellants,

v.

Carrie Garvin Devore a/k/a Carrie Ceveaux, deceased, Willie Devore, deceased, Catherine D. Wright, deceased, Ruby D. Green, deceased, Althea D. Chaneyfield, deceased, Jenetta D. Mackie a/k/a Jenetta D. Garrett, deceased, Clayton Devore, deceased, Bennie Devore, deceased, Clifton Devore, deceased, Moses Devore, deceased, Nathan Devore, deceased, Coretha D. Hamilton, Zevenia D. Dennis, Vilease Devore, Louise Woods Devore, deceased, Badyese Devore,

Gladys D. Frazier, Mary D. Smith, Cephrus Devore, deceased, John Wesley Devore, Miriam Devore, Barbara Dee Stevenson, Priscilla Bryan, Willie Wright, deceased, Edward Wright, deceased, Junior Mackie, deceased, Dercella M. Johnson, Donald Mackie, Annette Devore, Darius Devore, Annette Michelle D. Wright, Angela Devore, Jamesina D. Goodwin, Wendy Devore, Javis S. Devore, Cephrus A. Devore, Anthony Devore, Betty Devore, Isiah Devore, Cypress Woods Corporation, Henry Lott, Tereather Orr, Harold Garvin, Terry Brice, Lowther Investments, Inc., Emma Jones, and John Doe, representing as a class, any and all unknown adult heirs of the above named Defendants   that are deceased, and Richard Roe, representing as a class, any and all unknown minors, persons under  disability and persons in the military service who may have an interest  effected by this lawsuit,        Defendants,

Of Whom Tereather Orr is the        


Appeal From Jasper County
R. Thayer Rivers, Jr., Special Referee


Unpublished Opinion No. 2005-UP-097
Submitted January 1, 2005 – Filed February 9, 2005


AFFIRMED


Deborah Ann Malphrus, of Ridgeland, for Appellants

Kenneth L. Tootle, of Beaufort, for Respondent.

PER CURIAM: In this action to quiet title and partition property, Beatrice Devore Bing [1] and Theadie Mae Devore White (collectively Appellants) appeal from the order of the special referee selling the property to Tereather Orr.  We affirm. [2]

FACTS

Appellants were two of eleven children who inherited two tracts of land, one approximately 8.9 acres and the other approximately 17.2 acres.  Appellants brought the underlying action to quiet title and partition the property.

Neil Riley, as special referee, issued an order determining the ownership rights in the property.  Additionally, he found the property should be sold and the proceeds divided.  The order provided for the property to be listed with a realtor for three months for the purpose of seeking a private sale of the property.  If a purchaser was not found, the property could be sold at public auction. 

Subsequently, R. Thayer Rivers, Jr. was substituted as special referee.  The referee presided over a hearing to determine the method of sale for the property.  At the hearing, he took into evidence a bid for the 8.9-acre tract of land, letters indicating three realtors had been unable to locate a purchaser for the other tract, letters seeking sealed bids from individuals and entities, and an appraisal of the 17-acre tract.   The appraisal indicated the value of the 17-acre tract was $2,700 per acre or approximately $46,500 for the tract.  The hearing was continued and the time for submitting bids was held open. 

In a subsequent order, the referee accepted a bid for the 8.9 acres filed by one of the heirs. [3]   Additionally, the referee accepted a bid by Orr for the purchase of the 17-acre tract for $26,500.  The referee specifically found:  “In determining whether these bids were reasonable, I considered the appraisal of the subject properties which was introduced into evidence . . . the Jasper County’s Tax Assessor’s assessed value . . . [and] the sales price of several other tracts of land of comparable value in the general vicinity of the subject properties.”  The referee found Orr’s bid was “fair, just and equitable,” and set forth the specifics of the private sale of both tracts of land. This appeal follows the denial of Appellants’ motion to reconsider.

STANDARD OF REVIEW

“A partition action is an equitable action, heard by a judge alone and, as such, this Court on review may find facts in accordance with its view of the preponderance of the evidence.”  Anderson v. Anderson, 299 S.C. 110, 113, 382 S.E.2d 897, 899 (1989).

LAW/ANALYSIS

Appellants contend the referee erred in directing a private sale of the property and in finding the bid was fair and reasonable.  We disagree.

I.       Private vs. Public Sale

Pursuant to South Carolina statute:

The court of common pleas has jurisdiction in all cases of real and personal estates held in joint tenancy or in common to make partition in kind . . . or, in case partition in kind or by allotment cannot be fairly and impartially made and without injury to any of the parties in interest, by the sale of the property and the division of the proceeds according to the rights of the parties.

S.C. Code Ann. § 15-61-50 (1977).

First, we must address whether the issue of requiring sale by public auction has been preserved for review on appeal.  In their motion for reconsideration, Appellants argued there was “no evidence in the record supporting a finding that the sales price of $26,500.00 is a fair and equitable sales price.” The motion further stated that “[t]he Plaintiffs are informed and believe that the (17.22) acre tract of land . . . should be sold at public auction by the Jasper County Clerk of Court.”  While requesting sale by public auction, the motion does not specifically raise the issue of whether the referee erred “in ordering a private sale to an individual who was not an heir without the express consent of the plaintiffs and other heirs owning an interest in the property” as raised in Appellants’ brief.  Accordingly, the issue is not preserved for review on appeal by this court.  See Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).

The issue fails on the merits as well.  Appellants sought the sale of the property without specifying the method.  Appellants did not appeal the order of the referee on the issue of holding open the time for receipt of private bids.  In addition, Appellants specifically solicited private bids from several individuals.

Appellants cannot now complain of the method used by the court to sell the property when they consented to the method and even sought to take advantage of it by soliciting private bids from parties who were not heirs.  Orr filed the bid in accordance with the method and within the time allotted by the referee.  Accordingly, we find the referee properly allowed the property to be sold in a private sale as opposed to requiring a public auction.

II.      Amount of Bid

Appellants’ main contention appears to be that the value received for the property was far below the appraised value, and therefore, the referee was without evidentiary support in finding the bid was fair and equitable.  We disagree.

Appellants cite Pruitt v. Pruitt, 298 S.C. 411, 414-15, 380 S.E.2d 862, 864 (Ct. App. 1989), for the contention that where there is disparate testimony regarding the value of the property, partition by public sale is appropriate.  However, the trial court in Pruitt apportioned the property to one of the parties.  Id.  In the case sub judice, the property was sold to a private bidder after numerous bids were solicited and no other bid was received.  We find the holding in Pruitt to be inapposite to the instant case.

While the appraisal of the property is evidence of the value of the 17-acre tract, it is not the only evidence present in the record, nor must the court find a bid unreasonable if it is below the appraised value.  See Freeman v. Freeman, 323 S.C. 95, 105-06, 473 S.E.2d 467, 474 (Ct. App. 1996).  The record also indicates, and the referee specifically noted the fact Appellants contacted individuals soliciting bids on the property without receiving a single response. 

Additionally, the referee specifically stated he considered the appraisal, the value of land in the area, and the tax assessed value of the property.  Even though we have authority to find all facts with our own view of the preponderance of the evidence, we are not required to ignore the findings of the referee.  Id. at 98, 473 S.E.2d at 469-70.  Accordingly, we find there is evidence in the record indicating the sole bid received for the property was a fair and reasonable amount for the property and the referee did not err in ordering the private sale to Orr.

AFFIRMED.         

ANDERSON, STILWELL, and SHORT JJ., concur.


[1] Beatrice Devore Bing passed away during the proceedings and her interest in the property transferred to her children.

[2] We decide this case without oral argument pursuant to Rule 215, SCACR.

[3] The sale and amount received for the 8.9-acre tract are not subject to this appeal.