Weir v. . Weir

145 S.E. 281, 196 N.C. 268, 1928 N.C. LEXIS 344

• Court: Supreme Court of North Carolina
• Decided: November 14, 1928
• Status: Published

Opinion

Stacy, 0. J.,

after stating the case: That the movants have properly proceeded by motion in the cause is established by the decisions in Williams v. Dunn, 163 N. C., 206, 79 S. E., 512, Beckwith v. Mining Co., 87 N. C., 155, and Foard v. Alexander, 64 N. C., 69. And that they are entitled to make such motion is supported by the decisions in Andrews v. Pritchett, 72 N. C., 135, and McCanless v. Flinchum, 98 N. C., 358, 4 S. E., 359.

“It is clearly the duty of a sheriff to conduct his sales in a prudent and just manner, so as to realize a fair price for the property sold. And if he does otherwise, the sale is voidable. Voidable by whom? The general answer is, voidable by any person injured thereby;.by the defendant in the execution; by the plaintiff in the execution; by any creditor of the execution debtor.” Andrews v. Pritchett, supra.

But it has been held with us in a number of cases that an execution sale, when closed, is not subject to an upset bid — sections 688 (superseded by chapter 255, Public Laws 1927), 2591 and 3243 of the Consolidated Statutes not being applicable to execution sales — -and, when regularly made, such sale is not to be set aside, except for some trick, artifice, fraud, oppression or undue advantage, which must be alleged and proved, with each case to be judged by its own facts. C. S., 671, et seq., Burton v. Spiers, 92 N. C., 503; Bank v. Graham, 82 N. C., 489; Beckwith v. Mining Co., 87 N. C., 155; Black v. Justice, 86 N. C., 504; Crews v. Bank, 77 N. C., 110; Woodley v. Gilliam, 67 N. C., 237; Hill v. Whitfield, 48 N. C., 120; Bailey v. Morgan, 44 N. C., 352; Smith v. Greenlee, 13 N. C., 126; Oxley v. Mizle, 7 N. C., 250; Brodie v. Seagraves, 1 N. C., 96.

A sale en masse is not void, but will be supported where no fraud or unfairness is shown either on the part of the sheriff or the purchaser. Williams v. Dunn, supra; McCanless v. Flinchum, supra; Jones v. Lewis, 30 N. C., 70; Huggins v. Ketchum, 20 N. C., 550.

Nor is inadequacy of price alone sufficient to avoid the sale. Davis v. Keen, 142 N. C., 496, 55 S. E., 359; Trust Co. v. Forbes, 120 N. C., 355, 27 S. E., 43. But gross inadequacy of consideration, when coupled with any other inequitable element, even though neither, standing alone, may be sufficient for the purpose, will induce a court of equity to interpose and do justice between the parties. Worthy v. Caddell, 76 N. C., 82; 17 A. & E. (2 ed.), 1003; note: 42 L. R. A. (N. S.), 1198.

A careful examination of the record leaves us with the impression that no sufficient facts have been presently established from which it may be reasonably inferred that the sale should be set aside. However, the movants may yet show, if they can, such facts and circumstances as will entitle them to the relief sought.

Error.