88 S.E. 1 | N.C. | 1916
It appears that the petitioners, through the Atlantic Coast Realty Company, had on 3 November, 1913, sold, in small farms or parcels, certain lands which they owned, to several parties, among them being the respondent N.C. Cunningham, who purchased three of the lots at the price of $10,732.80. This was a private sale, that is, not made under any judgment or order of a court, but merely by the petitioners at public outer, through the realty company.
Petitioners afterward brought this proceeding for the purpose of having the land sold for partition among them, alleging in their petition that they are tenants in common of the land. They further allege that they had sold the land in small lots through the realty company and *170 that respondent had purchased three of the parcels at $10,732.80. They prayed that said sale be confirmed and that a commissioners be appointed to execute title to the several purchasers at the sale upon payment of the purchase money. The respondent was not a party to the proceeding and his name was not mentioned in the same except as otherwise above set forth.
The proceeding was commenced before the clerk of the court, and he entered judgment confirming the several sales and appointed S. A. Wooten and M. E. Bizzell commissioners to execute deeds to the purchasers, and, further, for the distribution of the proceeds of the sale. On appeal the judgment of the clerk was affirmed by the Superior Court.
At February Term, 1914, petitioners filed an affidavit in which they alleged that the said sale had been made and that N.C. Cunningham had purchased three of the parcels of land for $10,732.80, and at the time of the sale had deposited 10 per cent of his bid, or $1,073.28, with one W. G. Carr, and that the sale to respondent had been approved and confirmed by the court; that the deposit with Carr was made for the purpose of insuring a compliance by Cunningham with the bid by making the other payments and receiving a deed for his lots, and that a tender of a good and sufficient deed had been made by the commissioners appointed and authorized by the court to make the same. (125) The petitioners prayed that judgment be entered against the respondent for the amount of his bid, $10,732.80, with interest, less the amount of the deposit, $1,073.28, which should be retained by the commissioners, and further, that if respondent failed to pay the balance due by him, the land be sold and the proceeds of the sale applied to the payment of the judgment, including costs and expenses, and for further and general relief. Notice of the motion, or petition, was duly given to the respondent and he came in under a general appearance and answered, among other things, that he had declined to comply with his bid "because there was a shortage of thirteen (13) acres in the tracts of land sold to him." He was allowed to withdraw this answer and demur upon the grounds that the sale to him was invalid, as there were infants who were interested in the land, and the sale was not made in this judicial proceeding, and that the motion to bring him into this action is irregular and that the court cannot give the relief demanded against him. The court overruled the demurrer and defendant appealed.
After stating the case: We agree with the respondent that this proceeding against him is somewhat irregular and not strictly *171
according to the course and practice of the court. After perfecting the title in this proceeding for partition, an independent action should have been brought against the respondent to enforce the contract of purchase. But while this was the regular course to pursue, it seems to us that the rights of the parties may just as well be adjudicated in this proceeding, in view of the respondent's conduct in appearing generally and answering to the merits of the petition or motion, and then withdrawing his answer and demurring. His general appearance is still there. If he had appeared specially and moved to dismiss the petition, a different question might be presented, and, besides, as he has come into the case by his appearance, answer, and demurrer, and thereby waived the irregularity, we do not see why the court should not proceed to judgment, extending to him all the benefits and advantages he would have had if a separate action had been brought. He cannot be prejudiced by so treating this proceeding. If the court had first authorized the commissioners to accept private bids for the land in parcels, and respondent had made the same offer as he did at the sale, he would have been in the same position as a purchaser at a sale made under a judicial decree. He would have been a "preferred proposer" for the purchase of the land at the amount of the bid, and when the court had accepted his proposal and confirmed the sale the bargain would have been struck. Joyner v. Futrell,
The court may authorize its commissioner to receive, and report (126) to it, a private offer or bid for the land. This has too frequently been decided by this Court to be now an open question.Rowland v. Thompson,
By the appeal from the clerk the Superior Court at term acquired full jurisdiction of the cause, under Laws 1887, ch. 276; Revisal, sec. 614. SeeThompson v. Rospigliosi, supra, and cases cited. this jurisdiction included the right of the court to accept a private bid through its commissioner. When the bid is accepted, whether it was made at public or private sale, the court has jurisdiction over the purchaser for the purpose of enforcing compliance with it. 24 Cyc., 52; In re Yates,
We affirm the judgment, not because we approve this method of enforcing performance of a bid at private sale, but for the reason that respondent submitted to the jurisdiction of the court in this particular case, and it will save costs, and accomplish the same purpose, if we let the matter proceed rather than drive the petitioners to a separate action. The Judgment overruling the demurrer is affirmed, with directions to *173 permit respondent to answer and to set up any defense which would be available to him in an independent action, or in this, if it were strictly a proceeding to enforce compliance with a bid made at a judicial sale.
It appears form the record, by implication, that this special proceeding was brought to perfect the title, as there are infants who are interested, and that it was contemplated when the land was sold. This but adds another reason for sustaining the petition to confirm the sale and for such relief as the case requires.
No error.
Cited: Ryder v. Oates,
