In its petition to sell the intestate’s real property for assets the plaintiff alleged that mortgages in the aggregate amount of $12,000 were outstanding against all the property. When notice to show cause why they should not comply with their offer of purchase was served on J. S. Braswell individually and on Braswell, Ingram and Allen as joint bidders, they set up the lien of the mortgages and alleged that they had notified the commissioner that “the said mortgage liens would have to be paid and canceled of record as agreed upon on the date of said sale before the respondents would accept title to the same and pay the purchase price agreed upon.” The referee found as facts that the plaintiff had made an arrangement with one of the mortgagees whereby he was to accept the cash and notes of the purchasers and *615cancel bis mortgage, and tbat it was announced at tbe sale tbat tbis arrangement would be carried out; but tbat wben tbe commissioner tendered bis deed tbe mortgagee was not present and tbat no cancellation or release of bis mortgage bad been tendered tbe purchasers. Thereupon tbe referee held as a conclusion of law tbat it was incumbent upon tbe seller to tender a good and perfect title before tbe purchasers should be required to comply with their bids and tbat tbe plaintiff under tbe circumstances could not enforce tbe purchasers to accept tbe commissioner’s deeds and to comply with tbe remaining terms of their offer of purchase. Tbe presiding judge confirmed tbe referee’s report and held tbat tbe plaintiff could not enforce tbe bids. We find no error in tbis ruling and accordingly affirm tbe judgment.
Affirmed.