Cleary v. Leden

365 S.E.2d 903, 89 N.C. App. 338, 1988 N.C. App. LEXIS 290

• Court: Court of Appeals of North Carolina
• Decided: March 15, 1988
• Docket: No. 879SC659
• Status: Published

Opinion

ARNOLD, Judge.

Petitioners make three assignments of error, all of which essentially contend that the trial court erred in making adjustments reflecting the respective parties’ indebtedness in order to determine the net distribution of sale proceeds. We are not persuaded by petitioners’ arguments.

Proceedings for partition are equitable in nature. Roberts v. Barlowe, 260 N.C. 239, 132 S.E. 2d 483 (1963). A sale for partition may be ordered and the rights of the parties adjusted from the proceeds of the sale. Id.

The method used by the trial court to determine the net distribution of sale proceeds was as follows:

Bid Price $138,000.00

Sold Subject to following Debts:

Ledens 14,871.11

Clearys 60,167.12

Gross Sale Price 213,038.23

Less Expenses 7,776.20

Gross for Distribution 205,262.03

73 Gross to Ledens 68,420.68

Less Ledens’ Debt 14,871.11

Net Distribution 53,549.57

2k Gross to Clearys 136,841.35

Less Clearys’ Debt 60,167.12

Net Distribution 76,674.23

Petitioners urge that the following method be used to determine the net distribution of sale proceeds because the sale was a “subject to” sale:

Bid Price $138,000.00

Less Expenses 7,776.20

Gross for Distribution 130,223.80

73 Gross to Ledens —Net Distribution 43,407.93

2k Gross to Clearys —Net Distribution 86,815.87

We first note that a “subject to” sale means that the purchaser takes the property along with the existing liens and encumbrances against it. See Jordan v. Faulkner, 168 N.C. 466, 84 S.E. 2d 764 (1915). This fact, however, is irrelevant to the distribution of sale proceeds between the sellers in the present case.

Under petitioners’ method, they would receive $10,141.64 more than they received under the trial court’s method. Petitioners’ proposed method fails to take into account the disparity of debt percentage between the parties. It also provides petitioners with a windfall at the expense of respondents.

The method used by the trial court took into account the variation between the percentage of ownership and the percentage of total indebtedness of the parties. The actual net distribution correctly reflects both parties’ share of equity in the property. The trial court properly and equitably distributed the sale proceeds.

The judgment of the trial court is

Affirmed.

Judges Wells and Smith concur.