The conduct and procedure of a judicial sale is controlled by S.C. Code Ann. § 15-39-610 et seq. A judicial sale is used in magistrates' courts to satisfy an adjudicated claim by the sale of personal property taken from a losing party. The sale may be of personal property seized pursuant to a claim and delivery action, a distraint procedure, or as a result of a levy and execution. In some instances, the sale is made to satisfy the remainder of a claim only partially paid by the loser, but in every instance the sale is preceded by a judicial procedure and a final adjudication by the court against the owner of the property to be sold.
In most instances, the judicial sale is conducted by the constable, sheriff, or other officer to whom the original document authorizing seizure of the property was issued. However, in at least one instance (Repair and Storage Liens) magistrates are authorized to conduct the judicial sale themselves. (§ 29-15-10).
No judicial sale of property should be made until after the time for the filing of an appeal of a judgment is past, or until an appeal is heard and the judgment affirmed. (§§ 22-3-300 and 22-3-310). In claim and delivery actions, no sale should be made where a party has posted a bond for the property claimed. (§ 22-3-310).
While the procedures in the various types of judicial sales are similar, the existing differences merit separate discussions:
A judgment for the plaintiff or the defendant in a claim and delivery action may be for "the possession, the recovery of the possession or the (recovery of) the value (of the property claimed) in case the delivery cannot be had, plus the damages for the detention." (§ 22-3-1460). On a judgment for the delivery of possession, an execution shall be issued requiring the officer (the constable or sheriff) to deliver the personal property. The execution may at the same time require the officer to seize sufficient personal property of the other to satisfy any costs or damages as determined by the procedure set out in § 22-3-1480, and allowed in the judgment. (§ 22-3-1470). It is here that caution is advised. Unless the damages and costs are substantial, the execution should not order a seizure of personal property as the property seized would necessarily have to be disposed through a judicial sale. Very often, the cost of the judicial sale of goods seized to satisfy minor costs or damages would outweigh the amount of the costs and damages. In such instances of minor costs or damages, it may be more prudent to allow the plaintiff to bear the costs.
If the judgment in the claim and delivery action is for the value of the property where it is unable to be delivered, the execution should direct the officer to seize personal property of the party sufficient to satisfy the value stated in the judgment. Here, the execution may order the seizure to cover the value of any costs or damages ordered in the judgment, no matter how minor, since the seizure will necessitate a judicial sale anyway. (§ 22-3-1470). The judicial sale of property seized for either costs and damages alone, or for value plus costs and damages, must be made under the watchful eye of the magistrate (but not with his involvement or control), according to the statutes to insure the terms of his judgment are properly satisfied. The actual terms and procedures of the judicial sale upon the issuance of an execution, depends upon whether the execution issues to a constable or sheriff, or upon the existence of specific statutory direction. As the procedures for sales in claim and delivery and levied executions are the same, they are discussed as a part of the "attachment" discussion, while the procedure for sales in "distraint," as specially provided by statute, come within that section.
Upon the proper findings of fact by the judge in a distraint action and the issuance of a distress warrant to a constable or sheriff, the officer should go to the premises of the tenant and seize such personal property (if not exempt from seizure) as is necessary to satisfy the value of the rent and costs. (§ 27-39-240). Within five days after such seizure, the tenant may free his property from the distraint by posting a bond payable to the landlord as directed in § 27-39-310.
Upon the failure of the tenant to post a bond within the required time, the officer may sell the property at a public auction (or judicial sale) to the highest bidder for cash. (§ 27-39-320). The officer must post a notice of such public auction, stating specifically the time and the place of such sale, upon the premises and two other public places in the county for five days. (§ 27-39-320). The landlord or anyone else may be a purchaser at the auction (§ 27-39-340), but any property purchased is taken subject to any existing lien for taxes. (§ 27-39-330).
Section 27-39-250 concerns the effect of property of others found on the premises. If any property distrained is not the property of the tenant, the tenant should immediately name the owner and inform the officer. When this occurs, § 27-39-250 should be referred to and followed. Although landlords can distrain property belonging to third parties located on the leased premises, this rule does not exist where there is a publicly recorded security interest which gives the landlord notice of exactly what property on the premises is unavailable to distrain. In Exparte J.M. Smith Corporation In re Greenwood Petroleum Co., Inc. v. Wingard, 341 SC 442, 535 S.E.2d 131, (SC 2000), the Supreme Court ruled that a prior perfected security interest has priority over a landlord’s lien.
In actions in which a judgment has been rendered, and an execution issued and levied against the personal property of the defendant, or in which goods have been attached, and judgment and execution given, the sheriff or constable should satisfy the judgment out of the property attached.
In special instances of personal property seized pursuant to a writ of attachment that is perishable or too expensive to maintain, the property may be sold by the officer according to the conditions of § 15-19-280. However in situations in which a judgment has been rendered or a balance of a judgment is outstanding and an execution has been issued on the outstanding judgment, the sheriff or constable should satisfy that judgment through a judicial sale, under the direction of the issuing magistrate (§ 15-19-270), of the seized property by paying to the plaintiff the proceeds of the sale of the property (§§ 15-19-350 and 15-39-610).
Under an execution issued to a constable which directs the seizure of personal property and ultimately a judicial sale, the procedure and terms of the sale are set out in § 22-9-110. That section, in addition to requiring that the officer file a list of every article seized with the magistrate issuing the execution, states that the constable must give "fifteen days notice by advertisement at two of the most public places in the neighborhood of the time and place of sale". The fee and commission received by the constable for carrying out the execution and sale are statutorily detailed in § 8-21-1060(7).
In the instance of an execution to a sheriff in which personal property must be seized and sold in a judicial sale, the procedure and terms of the sale are dictated by another set of rules found at § 15-39-610, et seq. Where the sheriff is responsible for the execution, he must specify "in an advertisement the property to be sold, the time and place of sale, the name of the owner of the property, and the party at whose suit the sale is to be made." (§ 15-39-660). The advertisement should be published at three public places in the county, one of which should be the courthouse door, and another in a newspaper, for a period of fifteen days prior to the day of sale (§§ 15-39-660, 15-39-650, and 15-29-60). Additional particulars of sheriff's judicial sales are set out in Chapter 39, Article V, at § 15-39-610, et seq.
Magistrates have authority to conduct sales pursuant to § 29-15-10 to enforce repair and/or storage liens. Please refer to Section “O,” subsection “5” of the “Civil” section of this book for a detailed explanation of public sales conducted by magistrates pursuant to § 29-15-10.