86 N.C. 408 | N.C. | 1882
The sole question presented by the appeal for our consideration is, was there error in the ruling of the court below in setting aside the sale and re-opening the biddings.
The appellants insist they have rights, acquired by the sale and the report of the commissioner, and the ruling of the court below is in violation of their rights. But the doctrine has been settled in this state, *324
that the bidder at a judicial sale, such as this, acquires no right before the confirmation of the report of the commissioner who made the sale under the order of the court. Until then, the bargain is incomplete. The highest bidder at such sale acquires by the acceptance of his bid, no independent right, but is regarded as a mere preferred proposer, until the confirmation of the sale by the court. Miller v. Feezor,
All the authorities agree that courts of equity have an absolute power over all sales had under their orders — in confirming or setting them aside and reopening the biddings, etc.
(412) The practice in this respect is found to be variant in different states of the Union. Some of them have adopted the English practice and others have established rules of their own.
In this state, we have adopted the English practice with some modifications as to details. The practice, here, established by long usage in our courts of equity, has been to re-open biddings and order a resale whenever an advance bid has been offered of ten per cent. Upon the amount bid at the sale, provided it is made before the confirmation of the sale and in apt time, which is at the term ensuing the sale, but never to re-open the biddings after confirmation except in cases of fraud, meaning fraud in its broadest sense. The rule laid down by Mr. Justice RODMAN inBlue v. Blue,
In Daniel Ch. Pr., 1465, we find the English rule laid down, as follows: "When estates are sold before a master under the decree of a court of equity, the court considers itself to have greater power over the contract than it would have were the contract made between party and party; and as the chief aim of the court is to obtain as great a price for the estate as can possibly be got, it is in the habit, after the estate has been sold, of "opening the biddings." that is, of allowing a person to offer a larger price than the estate was originally sold for, and, upon such offer being made, and a proportionate deposit paid in, of directing a re-sale of the property." And again, on page 1466 of the same book, it is said, "that the mere advance of price, if the (413) report of the purchaser being the last bidder is not absolutely confirmed, is sufficient to open the biddings, and that they may be opened more than once." *325
The purchasers insist there was error in receiving the advance bid of Arrington, who was present at the sale and bid for the property. It is true, that is an objection that has been sometimes entertained on the ground that it tends to prevent a proper competition, but the objection having been taken before LORD ELDON, in the case of Tyndale v. Warre, cited in Daniel, Ch. Pr., 1460, he held, although the court looks with jealousy upon the offer of such a person, yet the largeness of the bid offered will be taken as a compensation for a loss that may have arisen from a want of competition at the sale.
It is further, contended that the receiver having reported that the property brought a fair price, the sale ought to be confirmed. But the receiver did not so report. He reported that he had been notified that an application to re-open the biddings for said property will be made at the present term of the court, but no application had been filed with him. However, should no such application be filed, he believed that, owing to certain claims to a portion thereof which have been asserted, and to the outlay of money which will be needed to put the canal property in good condition and suitable repair, the price for which it sold is as much as it will ever bring, and therefore in that event he recommended a confirmation of the sale.
The plain interpretation of the language of the report is, that the receiver will not recommend the confirmation of the sale if an advance bid should be offered, and that he recommends it only in the even it is not offered. That falls far short of reporting that the property brought its full value. And as to his belief that it was sold for as much as it would ever bring, it seems that he was mistaken.
The purchasers rely upon the remarks of Mr. Justice DILLARD, in the case of Pritchard v. Askew,
As biddings are merely opened for the benefit of those who have an interest in the property, this court in making its decision cannot take *326 into consideration the purposes for which the property is purchased, nor whether the purchasers are residents or non-residents. As Judge Bennett remarked in his judgment, "it is a mere question of dollars and cents."
Before concluding the opinion we have deemed it proper to say that Mr. Justice RUFFIN, who is related to some of the appellants, and Chief Justice SMITH, who has been heretofore connected professionally with the subject of the action, felt a delicacy and reluctance to sit upon the hearing of this appeal, but were constrained to do so by the necessity of the case and a sense of public duty. Such was the course of Judge GASTON while on the bench in a case with which he had been connected as counsel.
We are of the opinion there was no error in the ruling of the court below. Let this be certified that the cause may be proceeded with.
No error. Affirmed.
Cited: Vass v. Arrington,
(415)
