Walker, J.,
after stating tbe case: There was error in dismissing tbe proceeding, upon the special appearance. Tbe court should have ordered tbe money to be paid into court, or to tbe commissioner appointed to make tbe sale,' unless tbe petition was answered and tbe allegations thereof denied, which tbe respondents may now be allowed by tbe court to do. When tbe facts are ascertained in some way, according to tbe course and practice of tbe court, tbe latter may then proceed to declare tbe rights of tbe parties and enter judgment accordingly. If the bid for tbe land at tbe sale was $23,500, tbe purchaser -was liable for tbat amount upon a confirmation of tbe sale, tbe question of commissions for making tbe sale being one for tbe court and not for tbe parties to determine. Tbe court, speaking of tbe summary remedy against purchasers at public sales, under tbe statute (Rev. Code., cb. 31, sec. 129), said in
Ex parte
Cotten, 62 N. C., 81: “Tbe Declaration ■ of Rights provides tbat in all controversies at law respecting property, tbe ancient mode of trial by jury is one of tbe best securities of tbe people, and ought to remain sacred and inviolable. What controversy did tbe petitioner have which be bad tbe right to have determined by a jury? In a proper proceeding for tbe purpose, tbe court of equity bad ordered tbe sale of property, and be became tbe purchaser at a certain price, and promised to pay tbe amount at a given- day. He failed to pay, and tbe court bad tbe power to attach him for a contempt for not paying. Tbe proceedings of tbe court could be obstructed without end if, in attempting to enforce its judgments and decrees, tbe person against wbopi they are to be enforced could stop tbe proceedings until be could make up a controversy with tbe court, and have it tried by a jury. So, in this case, certain persons sought tbe aid of tbe court of equity to sell their property ; tbe court ordered tbe sale, and tbe petitioner bought, and now seeks to stay tbe proceedings of tbe court of equity in tbat case until another
suit can be instituted against him, in which, a jury can determine whether he ought to pay. The constitutional provision was certainly never intended to apply to a case like this. As a substitute for an attachment by which a court of equity can enforce all its decrees, a milder remedy is provided in the aforesaid statute, by notice and judgment on motion. And that statute is not unconstitutional.” The provision of the Rev. Code, cited above, has been brought forward in the Code (sec. 941), in the Revisal of 1905 (sec. 1524), and in Consolidated Statutes (sec. 621).
Lackey v. Pearson,
101 N. C., 651, where
Chief Justice Smith
discusses very fully the procedure in such cases, citing
Ex parte Gotten, supra; Lord v. Meroney,
79 N. C., 14, and other cases.
Hudson v. Coble,
97 N. C., 260, where the same
Chief Justice
again states the proper practice, citing
Rogers v. Holt,
62 N. C., 108;
Singletary v. Whitaker, ibid.,
77;
Ex parte Cotten, supra; Council v. Rivers,
65 N. C., 54, and he then says: “These cases assert the power of the court of equity; upon petition for the sale of land for the benefit of infants, to compel the purchaser by orders made in the cause to perform specifically his contract of purchase.” He further says: “The orderly mode of proceeding was for the court to accept the bid of Ooffield and Barnhill, by confirming the contract of sale, and then, upon the matter set out in the report, to enter a rule against them to show cause why they should not be required to comply with the terms of sale.” The court then proceeds to suggest, with reference to the correct procedure, that the purchasers may be decreed, (1) to specifically perform their contract; or (2) the land may be ordered to be sold and the purchaser released; or (3) without releasing the purchaser, such second sale may be directed, the purchasers undertaking, as a condition precedent to such order, to pay the additional costs and make good any deficiency produced thereby, citing
Council v. Rivers,
65 N. C., 54. The Court, in
Hudson v. Coble, supra,
closes with this language: “The form of the present proceedings is essentially equitable, and must involve, when necessary to accomplish its purpose, the exercise of similar powers. It could never have been intended by the Legislature to confer the jurisdiction and leave the court without the means of making it effectual and complete. The application is in the Superior Court, the clerk exercises jurisdiction, and any question of law or fact may be referred to the judge or jury. There is no impediment suggested in the way of the exercise of all the functions pertinent to the case, and to a full and final determination.” 24 Cyc., 52 and 53.
But counsel for respondents, while conceding this to be the general rule here and elsewhere, contend that there was a final judgment in this case; and, therefore, the remedy ordinarily available by motion in the pending cause is not open to petitioners. The answer to the position
is that even though the judgment was final, the allegations here are that the court was imposed upon, and important knowledge of the facts, as to the amount of the bid at the sale and as to certain transactions relating to it, were withheld from the court, and that it was deceived thereby, and induced to enter a judgment which it would not have rendered if it had possessed proper and requisite information of the facts and circumstances of the sale, which was wrongfully suppressed. Whether this is so or not must be ascertained by the court when an answer is filed, raising material issues. But until this is done, we must assume the facts to be as alleged in the .petition, there being no answer, but merely a motion to dismiss the proceeding, which requires us to consider the facts, as alleged, to be established, at least for the present, and for the purpose of deciding upon the motion. This being so, the case is brought directly within the principles stated in
Roberts v. Pratt,
152 N. C., 731;
Massie v. Hanie,
165 N. C., 174, and
Moody v. Wike,
170 N. C., 731. It was held in
Roberts v. Pratt, supra:
“While it is very generally recognized that a final judgment can only be impeached for fraud by means of an independent action, this position does not necessarily prevail when a judgment has been procured by imposition on the court as to the rendition, or where it has been entered contrary to the course and practice of the court. In such case, relief may ordinarily be obtained by motion in the cause, and this procedure, as a rule, is proper and allowable in--all cases where courts of the common law would correct their judgments by writs of error
coram nobis
or
coram vobisj
and this is especially true under our present system, combining legal and equitable procedure in one and the same jurisdiction.” The question is fully discussed by
Justice PLoTce
in the
Roberts case, supra,
and in
Massie v. Hanie, supra,
and further consideration of it we deem
to be
unnecessary.
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Walker, J.,
after stating tbe case: There was error in dismissing tbe proceeding, upon the special appearance. Tbe court should have ordered tbe money to be paid into court, or to tbe commissioner appointed to make tbe sale,' unless tbe petition was answered and tbe allegations thereof denied, which tbe respondents may now be allowed by tbe court to do. When tbe facts are ascertained in some way, according to tbe course and practice of tbe court, tbe latter may then proceed to declare tbe rights of tbe parties and enter judgment accordingly. If the bid for tbe land at tbe sale was $23,500, tbe purchaser -was liable for tbat amount upon a confirmation of tbe sale, tbe question of commissions for making tbe sale being one for tbe court and not for tbe parties to determine. Tbe court, speaking of tbe summary remedy against purchasers at public sales, under tbe statute (Rev. Code., cb. 31, sec. 129), said in
Ex parte
Cotten, 62 N. C., 81: “Tbe Declaration ■ of Rights provides tbat in all controversies at law respecting property, tbe ancient mode of trial by jury is one of tbe best securities of tbe people, and ought to remain sacred and inviolable. What controversy did tbe petitioner have which be bad tbe right to have determined by a jury? In a proper proceeding for tbe purpose, tbe court of equity bad ordered tbe sale of property, and be became tbe purchaser at a certain price, and promised to pay tbe amount at a given- day. He failed to pay, and tbe court bad tbe power to attach him for a contempt for not paying. Tbe proceedings of tbe court could be obstructed without end if, in attempting to enforce its judgments and decrees, tbe person against wbopi they are to be enforced could stop tbe proceedings until be could make up a controversy with tbe court, and have it tried by a jury. So, in this case, certain persons sought tbe aid of tbe court of equity to sell their property ; tbe court ordered tbe sale, and tbe petitioner bought, and now seeks to stay tbe proceedings of tbe court of equity in tbat case until another
suit can be instituted against him, in which, a jury can determine whether he ought to pay. The constitutional provision was certainly never intended to apply to a case like this. As a substitute for an attachment by which a court of equity can enforce all its decrees, a milder remedy is provided in the aforesaid statute, by notice and judgment on motion. And that statute is not unconstitutional.” The provision of the Rev. Code, cited above, has been brought forward in the Code (sec. 941), in the Revisal of 1905 (sec. 1524), and in Consolidated Statutes (sec. 621).
Lackey v. Pearson,
101 N. C., 651, where
Chief Justice Smith
discusses very fully the procedure in such cases, citing
Ex parte Gotten, supra; Lord v. Meroney,
79 N. C., 14, and other cases.
Hudson v. Coble,
97 N. C., 260, where the same
Chief Justice
again states the proper practice, citing
Rogers v. Holt,
62 N. C., 108;
Singletary v. Whitaker, ibid.,
77;
Ex parte Cotten, supra; Council v. Rivers,
65 N. C., 54, and he then says: “These cases assert the power of the court of equity; upon petition for the sale of land for the benefit of infants, to compel the purchaser by orders made in the cause to perform specifically his contract of purchase.” He further says: “The orderly mode of proceeding was for the court to accept the bid of Ooffield and Barnhill, by confirming the contract of sale, and then, upon the matter set out in the report, to enter a rule against them to show cause why they should not be required to comply with the terms of sale.” The court then proceeds to suggest, with reference to the correct procedure, that the purchasers may be decreed, (1) to specifically perform their contract; or (2) the land may be ordered to be sold and the purchaser released; or (3) without releasing the purchaser, such second sale may be directed, the purchasers undertaking, as a condition precedent to such order, to pay the additional costs and make good any deficiency produced thereby, citing
Council v. Rivers,
65 N. C., 54. The Court, in
Hudson v. Coble, supra,
closes with this language: “The form of the present proceedings is essentially equitable, and must involve, when necessary to accomplish its purpose, the exercise of similar powers. It could never have been intended by the Legislature to confer the jurisdiction and leave the court without the means of making it effectual and complete. The application is in the Superior Court, the clerk exercises jurisdiction, and any question of law or fact may be referred to the judge or jury. There is no impediment suggested in the way of the exercise of all the functions pertinent to the case, and to a full and final determination.” 24 Cyc., 52 and 53.
But counsel for respondents, while conceding this to be the general rule here and elsewhere, contend that there was a final judgment in this case; and, therefore, the remedy ordinarily available by motion in the pending cause is not open to petitioners. The answer to the position
is that even though the judgment was final, the allegations here are that the court was imposed upon, and important knowledge of the facts, as to the amount of the bid at the sale and as to certain transactions relating to it, were withheld from the court, and that it was deceived thereby, and induced to enter a judgment which it would not have rendered if it had possessed proper and requisite information of the facts and circumstances of the sale, which was wrongfully suppressed. Whether this is so or not must be ascertained by the court when an answer is filed, raising material issues. But until this is done, we must assume the facts to be as alleged in the .petition, there being no answer, but merely a motion to dismiss the proceeding, which requires us to consider the facts, as alleged, to be established, at least for the present, and for the purpose of deciding upon the motion. This being so, the case is brought directly within the principles stated in
Roberts v. Pratt,
152 N. C., 731;
Massie v. Hanie,
165 N. C., 174, and
Moody v. Wike,
170 N. C., 731. It was held in
Roberts v. Pratt, supra:
“While it is very generally recognized that a final judgment can only be impeached for fraud by means of an independent action, this position does not necessarily prevail when a judgment has been procured by imposition on the court as to the rendition, or where it has been entered contrary to the course and practice of the court. In such case, relief may ordinarily be obtained by motion in the cause, and this procedure, as a rule, is proper and allowable in--all cases where courts of the common law would correct their judgments by writs of error
coram nobis
or
coram vobisj
and this is especially true under our present system, combining legal and equitable procedure in one and the same jurisdiction.” The question is fully discussed by
Justice PLoTce
in the
Roberts case, supra,
and in
Massie v. Hanie, supra,
and further consideration of it we deem
to be
unnecessary.
If the facts are, as set out in the petition, and upon the motion to dismiss, in the nature of a demurrer, we must so hold, the petitioners have proceeded properly, and are entitled to be heard, and to have the court ascertain the facts by some appropriate procedure, and pass upon the rights of the parties.
We can never lend our approval to a practice by which parties stipulate as to the distribution ■ of the proceeds of a judicial sale, affecting their own interests and for their own benefit, without the full knowledge and consent of the court. The facts must be disclosed in the report and submitted to the court, for its approval in proper cases. There are infants in this case whose rights may be seriously affected and prejudiced by such an agreement, and their interests must be protected. What was done in this particular matter may have been caused by ignorance of the law and of correct legal procedure, but the fact still remains that according to the allegations of the petitioners, the court was deprived of that
knowledge of the transaction to which it was entitled, and that it acted, and passed the decree, because of it, or, at least, without being aware of the agreement between the parties, or of any of its terms.
It may be that the facts will appear to be quite different from those alleged by petitioners, but however this may be, they are entitled to relief, and to substantial relief if they are successful in establishing their case.
The judgment will be set aside and further proceedings had in the court below, as indicated.
Reversed.