The trial court was of opinion that upon the facts disclosed by the evidence for the plaintiff, and admitted by defendant’s motion for judgment as of nonsuit, the plaintiff cannot maintain this action; that plaintiff’s remedy upon these facts is not by an independent action brought in the Superior Court of this State, but by a motion in the bаnkruptcy proceeding now pending in the District Court of the United States for the Middlе District of North Carolina. In accordance with this opinion, judgment was renderеd dismissing the action. Plaintiff excepted to the judgment, and on his appeal tо this Court contends that there was error in the opinion of the court, in accordance with which the judgment was rendered. This contention cannot be sustained. The judgment dismissing the action is in accord with the decision of this Court in
Marsh v. Nimocks,
“In a procеeding to sell land for assets the court of equity has all the powers necessary to accomplish its purpose, and when relief can be given in the pending action, it must be done by a motion in the cause and not by an independent action. The latter is allowed only when the matter has been closed by a final judgment. If the purchaser fails to comply with his bid, the remedy is by motion in the cause to show cause, etc., and if this mode be not pursued, and a new action is brought, the court ex mero motu will dismiss it. This course is adopted to avoid multiplicity of suits, avoid delay and save costs. Hudson v. Coble,97 N. C., 260 , Pettillo, ex parte,80 N. C., 50 ; Mason v. Miles,63 N. C., 564 , and numerous cases cited in them.”
Plaintiff’s contention that he cannot be given the relief to which he is entitled upon the facts disclosed by the evidence, by the District Court of the United States, in which the bankruptcy proceeding is now pending, and that, therefоre, he can maintain this action in the Superior Court of this State, cannot be sustained. The District Court acquired jurisdiction of the defendant for the purposе of enforcing compliance with his bid, when his bid was accepted and the sаle to him was confirmed.
Wooten v. Cunningham,
“It is well settled that a court of equity has jurisdiction to compel a purchaser at a judicial sale under its decree to cоmplete his purchase according to the terms of the sale. By bidding at the sаle, and having his bid accepted, and the property knocked off to him, hе subjects himself to the jurisdiction of the court, and becomes a party to thе proceedings in which the sale was had and can be compelled by summary proceedings at the suit of any one interested to perform his contrаct of purchase specifically, by paying the purchase money into court, in whole or in part, and to execute the required securities, as rеquired by the prior decree, and conform to its terms in all other respects.” 16 R. C. L., p. 163, sec. 120.
“Where the purchaser at a judicial sale refuses to cоmply with his bid, the court in which the sale was had will enforce his liability by ordering the property resold at his cost and risk, and charging him with the deficiency between the amount obtained at the resale and the amount of his original bid, and with the expense of the sale. This summary proceeding against a default purchaser to obtain an order of resale at his risk is grounded upon the equitable lien held and controlled by the court as vendor of the property for the benefit of thоse interested in' the proceeds of the sale.” 16 R. C. L., p. 167, sec. 122.
Upon the facts disclosed by the evidence for the plaintiff at the trial in the Superior Court, there was no error in the judgment dismissing the action. The judgment is
Affirmed.