Clayton Banking Co. v. Green
149 S.E. 689
N.C.
1929
Check Treatment
Brogden, J.

Was there a valid increase of bid under tbe circumstances set forth in tbe facts found by tbe trial judge?

Tbe correct answer to the question of law presented involves a construction of C. S., 2591. This section has been construed in many decisions of this Court, notably Wise v. Short, 181 N. C., 320, 107 S. E., 134; In re Sermon's Land, 182 N. C., 122, 108 S. E., 497; Pringle v. Loan Association, 182 N. C., 316, 108 S. E., 914; In re Ware, 187 N. C., 693, 122 S. E., 660; Trust Co. v. Powell, 189 N. C., 372, 122 S. E., 660; Briggs v. Developers, 191 N. C., 784, 133 S. E., 3; Newly v. Gallop, 193 N. C., 244, 136 S. E., 610; Cherry v. Gilliam, 195 N. C., 233, 141 S. E., 594.

However, it does not appear that the exact point raised in the case at bar has been determined. It is clear from the decided cases that the statute confers no power on the clerk to make orders in the cause witb respect to a resale unless the bid is increased. It is also clear that an order of sale or of resale made nunc pro tunc is valid. Lawrence v. Beck, 185 N. C., 196, 116 S. E., 424.

*538 The statute requires that the money representing an increased bid is to be “paid to the clerk of the Superior Court.” Does this language mean that the money must be actually placed in the hands of the clerk by the person desiring to raise the bid, or is it sufficient to pay the money within a period of ten days to a duly authorized agent.of the clerk?

It is familiar learning that the delivery of a deed is ordinarily necessary to pass title to land. In Lynch v. Johnson, 171 N. C., 611, 89 S. E., 61, this Court held that, if a deed properly executed, was placed in an envelope, properly stamped and addressed and deposited in the mail, that thereupon title to the property described in the deed vested in the purchaser named in the instrument. The theory upon which this principle rests is that the grantor had parted with possession and control of the paper-writing by placing it in due course of delivery to the grantee. In Pringle v. Loan Association, supra, it was stated by the Court that “in all such cases if the prescribed amount of the raise in bid is guaranteed, or paid, to the clerk he shall require the mortgagee or trustee to advertise and resell on 15 days notice.” A strict construction of this language would indicate that if the increased bid is guaranteed, the requirements of the statute would be met. However, it is not necessary to place this decision upon that ground. In Briggs v. Developers, supra, an increased bid of two per cent was deposited with the clerk. This deposit, of course, was not in strict compliance with the statute, but the increased bid was held to be valid. This case is direct authority for the position that substantial compliance with the statute with respect to the payment of the increased bid is fully recognized. The reason is that as the statute was enacted for the protection of mortgagors it must be construed liberally when reasonably necessary to effectuate that purpose.

The facts disclose that the clerk of the Superior Court of his own motion selected the United States mail as the agency for transmitting the money to the court. If the clerk of the Superior Court had sent his deputy from Smithfield to Clayton to receive the money and the deputy had actually received the money, but did not report to the clerk until next morning, it could not be successfully contended that the money had not been paid. Furthermore, it appears that the attorney for the plaintiff went in person to the clerk’s office on the afternoon of 6 May, and offered to pay the money, but was -informed by the clerk that the bid had already been raised and that an order of resale would be made in due course. Under these circumstances we are of the opinion and so hold, that the increased bid of plaintiff was duly filed and that the order of resale was valid.

The defendants rely upon Wooley v. Bruton, 184 N. C., 438, 114 S. E.. 628. An examination of that case, however, discloses that the *539 opinion was based upon the particular wording of the statute to the effect that the license must be “delivered to bim as required by law,” etc. Tbe word “delivered” was construed to mean manual delivery. We cannot bold that the Bruton casei is determinative of the legal principle involved in the case at bar.

Affirmed.