In effect the Court approved and sustained the findings of fact and law by the referee. The reference was by consent of parties. Hence, it is not the province of this Court to review the findings of fact, although this action is equitable in its nature, if there is any evidence to sustain them.. This is settled by many decisions. There was clearly some evidence to sustain such findings of fact, and accepting them, as we must do, the exceptions as to them cannot be sustained. The credits claimed were, for the reasons stated by the referee, property disallowed, and the charge complained of was a proper one.
The intestate of the defendant in his life-time owed the plaintiff Whitehead certain debts, and to secure the same executed to the latter two mortgages of the land therein *461specified. Under a power of sale in these mortgages the land was sold, and the mortgagee, indirectly through a third party, purchased the same at a “fair” sale, and they sold for their full value. This appears. This sale was made in February of 1883, and the money, the proceeds of the sale, properly applied. The mortgagor died shortly before the sale, but, so far as appears, the heir at law did not and does not at all complain of the same, nor did the defendant until he filed his exceptions to the report; nor does it appear that he is interested in opposition to it as administrator or otherwise. This sale was not void; it was voidable at the instance of the heir, and in possible cases, it may be that the administrator might in some proper way avoid it, but this does not appear to be such a case. It does not appear that the creditors of the intestate are or can be prejudiced by it, and the defendant is not — does not profess to be — interested in their behalf. Joyner v. Farmer, 78 N. C., 196; Sumner v. Sessoms, 94 N. C., 371; Gibson v. Barbour, 100 N. C., 192.
In 1883 the. defendant applied to a proper. Court for a license to sell certain of the lands of his intestate to make assets to pay debts. Such license was granted; the sale was made; the purchaser at the same paid the purchase-money; the sale was confirmed by the Court and the defendant was directed to make title to the purchaser, which he accordingly did. Afterwards, iñ 1887, the counsel for the defendant and counsel for the plaintiff Whitehead agreed to set aside the sale last above mentioned, and this stipulation was handed to the Clerk of the Superior Court in which the license to sell the land was granted ; but the Clerk made no such order, nor did the Court in term time, or at all. What purported to be a resale of the same land was made in 1889, after this action began, and eight hundred dollars was bid for the same. The defendant insists that the referee should have charged him with this sum, and not that bid and paid for the land at the sale thereof under license from the Court, *462as he did do. The license to sell the land, the sale thereof and .the confirmation of the sale was not set aside — it remained and remains in full force,, and, effect, and the defendant is properly charged with the price bid and paid for it. The second supposed sale had no judicial or authoritative sanction and was ineffectual, certainly as to the purposes of this action. • . .
As to the exceptions five, six and eléven to the findings of law, we are of opinion that they are unfounded. The findings .-of fact pertinent, certainly so far as we can see, warrant them. If there is error, the burden is upon the defendant to make it appear. None is pointed out and none appears upon the face of the record.
. ... Judgment affirmed.