| N.C. | Dec 5, 1859
This is a petition for the sale of several tracts of land and town lots, filed by the heirs at law of Caleb Klutts and the widow, who joined them in respect of her right of dower. There was a decree for the sale, and the property all sold by the clerk and master of Rowan, who reported that the sales were for a full price, and the master's report stating that fact, accompanied with bonds taken by him, was confirmed. At a subsequent term a motion was made that the master collect and distribute the proceeds of the land among the petitioners. On this motion a question arose as to what proportion the widow is entitled in respect of her dower; also, whether she is entitled to such proportion in the money raised by the sale of two lots in Salisbury, which brought $4,713. These lots had been bid off by Mr. Klutts in his lifetime at a sale by the clerk and master of Rowan as the property of one Moses L. Brown, and bounds were given by him pursuant to the terms of the sale; but before the term to which the master was to report, he (Klutts) died. The sale, however, was confirmed afterwards and the money ordered to be collected and title made to the purchaser.
The widow of Caleb Klutts contends that she is entitled to dower in the equitable estate of her husband in the two town lots, which is opposed by the heirs at law, and in this state the cause is brought to this Court. This is a petition filed by the heirs at law of Caleb Klutts against the widow, praying for a sale of lands in order *77 to allot dower and make division among the said heirs to the best advantage. The question is, whether the purchaser of real estate at a master's sale, who gives bond for the purchase money and dies before the sale is reported to or confirmed by the court, is seized of such an equitable estate as will entitle his widow to dower. It seems the court, after the death, confirmed the sale, and the case now awaits the collection of the purchase money and the making of title.
The case of Thompson v. Thompson,
That case seems to have turned upon the point whether the vendee had any equitable estate in the land, as distinguished from a mere right in equity, and with respect to that, we do not perceive any material difference between the cases. The sale in equity is conducted by the master under the order of the court. The biddings are public, the master accepts the last and highest, takes the bond or bonds of the purchaser and reports to the court. Such a sale, according to the ordinary course, is subject to the disapproval of the court, and subject also to the lien of the former owner until the purchase money is paid. It is nevertheless, as we think, a contract to sell which may be enforced in equity, and, therefore, in a court of equity, the land is considered the property of the vendee. He has an equitable estate in it subject to be defeated.
By recurring to the case of Thompson, it will be perceived that the equity of the vendee was not a simple or unmixed equity, but was encumbered with the superior equity of the vendor to have this purchase money paid. In that case, like the one before us, the estate of the vendee was subject to be defeated by the nonpayment of the money.
We do not attach any special importance to the other condition to which the contract of sale in this case was subject, to wit, the approval of the court. The power to set aside is not an arbitrary power, but is regulated by law. Our case is not encumbered by it, therefore, (82) with any new principle. It only adds a condition whereby the vendee's equity may be defeated. It makes the vendee's equity a little more complex, but does not materially change its nature.
Upon the whole, we think the case depends upon the principles laid down in the case of Thompson, and that the defendant, the widow, had a right to have the lots in question disencumbered of the lien for the purchase money, and to have dower allotted therein as well as in the other lands set forth in the petition. It is also apparent to us that the interest of all parties, and especially the infant petitioners, has been promoted by the sale of the entire estate in the lands, and a division of *78 the proceeds may be made according to the respective interests of the parties.
PER CURIAM. Let a decree be drawn accordingly.
Cited: Caroon v. Cooper,