Bomer v. Campbell

318 S.E.2d 841, 70 N.C. App. 137, 1984 N.C. App. LEXIS 3602

• Court: Court of Appeals of North Carolina
• Decided: August 21, 1984
• Docket: No. 8330SC892
• Status: Published

Opinion

PHILLIPS, Judge.

Respondent’s first contention is that the court erred in ordering that the property be sold rather than divided in kind. This contention is overruled. The trial court’s conclusion that an actual division of the property cannot be made without injury to one or both of the co-tenants is abundantly supported by the findings made, which in turn are supported by competent evidence. Thus, the order of sale is authorized under the provisions of G.S. 46-22, and is binding upon us. Williams v. Pilot Life Insurance Co., 288 N.C. 338, 218 S.E. 2d 368 (1975). Indeed, the size and nature of the two tracts involved, with one lot having a two bedroom house on it, and the other lot, not much bigger, being unimproved, would seem to have made the court’s conclusion that a sale was necessary almost inevitable. In all events, this question of fact was determined against the respondent according to law and cannot be disturbed. Phillips v. Phillips, 37 N.C. App. 388, 246 S.E. 2d 41, cert. denied, 295 N.C. 647, 248 S.E. 2d 252 (1978).

And the respondent’s second contention, which concerns certain alleged equities between the parties, requires no consideration, since that issue is not now before us. The record shows that the equities between the parties have not yet been determined and will not be until after the sale is completed and the funds are in hand, ready for distribution. Thus, this contention is premature.

But the respondent’s contention that the Clerk’s order requiring a cash bond of the high bidder was erroneous is well taken. Implicit in the authority that G.S. l-339.25(c) gives Clerks of the Superior Court to require the highest bidder at a resale of property to deposit a cash bond is the requirement that there be some justifiable basis for such an order; otherwise, the discretionary power that the statute gives Clerks in such matters would be unbridled and subject to neither legal review nor remedy. Such is not our law. The general policy of our law favors maximum bidding at judicial sales; and requiring a cash bond in the full amount of the bid, rather than the 5% or so usually deposited under G.S. l-339.25(a), obviously tends to inhibit bidding when a substantial amount, such as $28,000, has already been bid. It is a matter of common knowledge that few people in this state are capable of depositing $30,000 or $40,000 in cash for any purpose, fewer still can do so without the inconvenience and expense of converting holdings or borrowing from the bank, and not everyone capable of and interested in buying property is willing to go to such inconvenience and expense just to make a bid that might not be acceptable. Yet the Clerk’s order requiring a cash bond in the amount of the bid contained no finding that such a deposit was necessary; and nothing in the record suggests that such a finding would have been proper if it had been made. Thus, on this record, it was an abuse of discretion on the Clerk’s part to require such a bond and it was error on the Judge’s part not to grant respondent relief from it.

The court’s order confirming the sale of the property to petitioner is therefore vacated and this matter is remanded to the Superior Court for a continuation of the sale process in accord with the provisions of this opinion and the other laws pertaining thereto. The petitioner’s $40,000 bid is not being disturbed, but shall remain in effect under the laws governing such matters until the sale is either confirmed at that price or an upset bid is filed. The respondent or anyone else who desires to do so shall be permitted to upset petitioner’s bid by complying with the provisions of G.S. l-339.25(a) within ten days after the certification of this decision to the Jackson County Superior Court.

Vacated and remanded.

Judge Arnold concurs. Judge Hedrick concurs in result.