Wood v. . Fauth

35 S.E.2d 178, 225 N.C. 398, 1945 N.C. LEXIS 325

• Court: Supreme Court of North Carolina
• Decided: September 19, 1945
• Status: Published

Opinion

Devin, J.

This partition proceeding having been transferred to the civil issue docket of the Superior Court, confirmation of the sale was a matter for the judge. Dixon v. Osborne, 201 N. C., 489, 160 S. E., 579. The reported sale on the bid of Mary C. Fauth was duly confirmed by the judge at term. This conferred upon her certain rights of which she could not be summarily deprived. Upon failure to comply promptly with her bid the proper procedure was by rule to show cause. A reasonable time within which to pay before vacating the sale and confirmation and ordering another sale should have been allowed, Ex Parte Wilson, 222 N. C., 99, 22 S. E. (2d), 262; Mebane v. Mebane, 80 N. C., 34; Pettillo, Ex Parte, 80 N. C., 50; Hudson v. Coble, 97 N. C., 260, 1 S. E., 688; Marsh v. Nimocks, 122 N. C., 478, 29 S. E., 840; Gilliam v. Sanders, 198 N. C., 635, 152 S. E., 888; this by analogy to the practice in the foreclosure of mortgages. Pettillo, Ex Parte, supra. Upon compliance with her bid after judicial confirmation, defendant would be entitled to deed conveying title as of the day of sale. Parker v. Dickinson, 196 N. C., 242, 145 S. E., 231.

Under the circumstances of this case we think the court below was in error in vacating the previous order of confirmation and ordering resale without affording defendant reasonable time as prayed within which to pay the full amount of her bid in cash. The defendants’ motion that the commissioners be required to offset the lien of the bidder on petitioner’s share and the assigned shares of the other defendants against the purchase price was properly denied. The commissioners had the right to require the payment of the amount bid in cash.

For the error pointed out the cause is remanded to the Superior Court of Pasquotank County for further proceedings not inconsistent with this opinion.

Error and remanded.