Vass v. . Arrington

89 N.C. 10

• Court: Supreme Court of North Carolina
• Decided: October 5, 1883
• Status: Published

Opinion

Ashe, J.

We can see no reason for disturbing the judgment of the superior court, except so far as it relates to the taxes due in 1S83.

The courts, exercising in this respect an equity jurisdiction, according to all the authorities, have an absolute power over all sales had under their orders, in confirming or setting them aside and reopening the biddings, &c., but they have adopted certain rules governing their practice in such cases, which have been observed with almost unvarying uniformity.

In this state our courts have adopted the English practice, and will set aside a sale for inadequacy of price, when that fact is shown to the court by affidavit or otherwise; but when the commissioner has reported that the property sold has brought a fair price, and there is no evidence adduced to the contrary, the court will confirm the sale, unless before confirmation an offer is riiacle to raise the bid ten per cent.; in which case our courts will always set aside the sale and open the biddings. Blue v. Blue, 79 N. C., 69; Bost ex-parte, 3 Jones’ Eq., 482; Pritchard v. Askew, 80 N. C., 86; Wood v. Parker, 63 N. C., 379; Attorney General v. Roanoke Navigation Co., 86 N. C., 408.

There has been no offer in this case to raise the bid, and the evidence upon the question of inadequacy of price is so decidedly in favor of the purchaser, that we are led to the conclusion that the property brought a full and fair price.

By the terms of the mortgage, it is evident it was the inteu tion of the parties that the property should be sold in solido. The decree of sale in that way was acquiesced in by the parties at the time of its rendition, and up to the very clay of sale, as is indicated by the bidding of Mrs. Arrington at the sale. There was no objection by her to the sale in entirety until some fifteen months after the decree, and not then until she failed to compty with her bid. And the court, in decreeing a sale of the entire property, only carried out the intention of the parties as indicated by the terms of the deed, and their acts and conduct after the decree. Yet this would have but little weight with the court if it had been made to appear that any injustice had been done to the complaining party.

As to so much of the judgment of the superior court as charges the excess of the proceeds of sale with the taxes due the first of June, 1883, we arc of the opinion it was erroneous, and the defendant’s exception should have been sustained.

Where land is sold under decree of court, the purchaser acquires no independent right. He is regarded as a mere proposer until confirmation. Attorney General v. Roanoke Navigation Co., supra. But when confirmation is made, the bargain is then complete, and it relates back to the day of sale. Rorer on Jud. Sales, §122. The case of McArtan v. McLauchlin, 88 N. C., 391, is an adjudication on this point, which, it seems to us, is decisive of the question. There, a creditor of one McLeod, who died in May, 1870, brought action against his administrator aucl recovered judgment for a considerable amount, and then sought to have the land of McLeod subjected to the payment of his demand. The land had been sold under a decree of sale for partition on the 3d of November, 1871, and the deeds to the purchasers were executed after two years from the granting of letters of administration, and the question presented to this court was whether the title of the purchasers accrued from the date of the deeds, or from the sale. Mr. Justice Ruffin, speaking for the court, said:

“The court thinks, and so declares, that the defendants (who were the purchasers) took the lands from the commissioner in the same plight and condition they were in at the moment of sale, and subject, as they were, to the payment of the decedent’s debts.”

Applying the principle there announced to our case: By the confirmation of the report of the commissioner, the purchaser acquired title to the house and lot by relation to the day of sale, and takes them in the same plight and condition they were in at 'the moment of sale on the — day of May, 1882, subject to the taxes due in that year.

The judgment must therefore be reformed so as to eliminate therefrom so much as relates to the charge of the taxes of 1883 upon the proceeds of the sale, and in all other respects is affirmed. Let this be certified to the superior court of Wake county, that further proceedings may be had in the case as the law requires.

Per Curiam. Modified.