87 N.C. 155 | N.C. | 1882
If his Honor had entertained the plaintiff's motion, and in the exercise of a legal discretion refused it upon the ground that he did not under the circumstances of the case regard the inadequate price bid a sufficient reason for disturbing the sale, this court would in all probability have felt itself bound to concur in that decision. As a general thing, mere inadequacy of consideration, standing alone and disconnected with any circumstance of fraud or surprise, is not a sufficient cause for setting aside a sale under execution. Such is the rule now generally adopted in the courts, and, though it may sometimes work particular hardships, is found to be best on the whole, as well for the parties as purchasers and the public, as tending to give certainty and stability to sales under process issuing from the courts.
But still, in adequacy of price, if combined with any other circumstances calculated to throw suspicion upon the sale, or if in itself so gross as to be suggestive of mistake or undue advantage, may prevail with the court from which the process issued, to dispense with the sale and order a resale; and at all events, a party (158) complaining of it has a right to have the facts ascertained, in order that the court may act understandingly in the matter.
Now, as we understand the ruling in the court below, his Honor declined out and out to consider the plaintiff's motion or to hear the evidence tendered in support of it, holding it to be a conclusion of the law, that under no circumstances can a plaintiff, at whose instance a judgment has been rendered and an execution issued, be heard to complain of the sale because of its inadequacy, however gross or glaring it may be.
We know of no authority going to support the distinction, which his Honor seems to make, between a plaintiff and any other party who may be interested in the matter. On the contrary, it is said in Freeman on Executions, Sec. 305, that "the plaintiff, the defendant, and the purchaser, may each be aggrieved by a sale under execution, and therefore each is entitled to prosecute a motion to set it aside;" and upon a reference to the adjudged cases upon the subject, we find that in a large number of them the motion to set aside came from the plaintiffs in the judgments, at whose instance the executions had issued. For this error the judgment must be reversed, though we confess we have reached this conclusion after considerable hesitation.
There seems to be no suggestion of fraud in the case, nor of any circumstance of surprise or undue advantage, and if permitted, therefore, to examine for ourselves the affidavits filed, we might be able to see that his Honor's ruling was in fact right, though supported by an incorrect reason. But this court, in such a case as this, cannot consider the evidence, but must act exclusively upon the facts as found *135 in the court below, and the error consists in finding no facts, either for its own guidance or the guidance of this court. The only legal proposition declared by his Honor is, as we have seen, unsupported by the authorities. There is error.
Error. Reversed.
Cited: McCanless v. Flincham,
(159)
