This appeal poses only two questions: first, Did tbe court err in denying appellant’s motion, made under special appearance, to vacate tbe restraining order for tbe reason that tbe Fletcher Lumber Company was not a party to tbe original ex parte proceeding before tbe clerk?, and second, Did tbe court err in denying said motion for tbe reason that a final judgment bad been entered in said proceeding? We are of tbe opinion, and so bold, that a negative answer is proper to both questions.
Appellant’s position that tbe Fletcher Lumber Company is not a party to tbe ex parte proceeding is untenable. Tbe contract with tbe lumber company is specifically made a part of tbe court order, and by signing said contract and beginning operations thereunder, after its submission to and approval by tbe court, tbe lumber company made itself a party to tbe proceeding and submitted itself to tbe jurisdiction of tbe court, and tbe court was thereby vested with tbe power to enforce compliance with tbe contract, and this power continues to exist until tbe contract is fully performed.
In a proceeding before tbe clerk to sell tbe land of tenants in common it was held that tbe jurisdiction of tbe court included tbe right to accept a private bid through its commissioner, as was done in tbe instant case, and “When tbe bid is accepted, whether it was at public or private sale, tbe Court has jurisdiction over tbe purchaser for tbe purpose of enforcing compliance with it.” Wooten v. Cunningham, 171 N. C., 123, 88 S. E., 1, and eases there cited.
“In a proceeding to sell lands for assets tbe court of equity has all tbe powers necessary to accomplish its purpose and when relief can be given in tbe pending action it must be done by a motion in tbe cause and not by an independent action. Tbe latter is allowed only where tbe matter has been closed by a final judgment. If tbe purchaser fails to comply with bis bid, tbe remedy is by motion in tbe cause to show cause, etc., and if this mode be not pursued, and a new action is brought, tbe court ex mero motu will dismiss it. This course is adopted to avoid tbe multiplicity of suits, avoid delay, and save costs. Hudson v. Coble, 97 N. C., 260; Pettillo, ex parte, 80 N. C., 50; Mason v. Miles, 63 N. C., 564, and *102numerous eases cited in them.” Marsh, Administrator, v. Nimocks et al., 122 N. C., 478, 29 S. E., 840.
The contention of the appellant that the order of the clerk of 20 January, 1941, approving the proposed contract between the petitioners and the Fletcher Lumber Company, and authorizing, empowering and directing its execution, and the collection of the payments due thereunder and the full performance of the provisions of the contract was a final judgment, and therefore the restraining order issued thereafter was unauthorized by law, is untenable.
This order of confirmation was not a final judgment for the reason that the contract provides for deferred payments to be made to the commissioners, who were officers of the court, to be applied on the debts of the decedent, and a final judgment could not be made until the last payment of the purchase price of the timber was made. “The action is not ended as long as anything remains to be done.” Hoff v. Crafton, 79 N. C., 592.
In Long v. Jarrett, 94 N. C., 444, where an administrator had sold land to make assets and an independent action was brought by the administrator of the purchaser to have deed executed the court dismissed the action and held that a motion in the cause was the proper remedy, it is written: “The proceeding in which the land was sold has not been terminated by any final order or decree, nor will it be, until the purchase money for the land has been paid, and a proper order entered, directing title to be made to the purchaser, or to the person to whom he may have transferred his bid. That proceeding is. still pending, in the contemplation of law, and if it has been allowed to disappear from the current docket of the Court, it may be brought forward upon motion therein for that purpose.”
“By means of that proceeding, the Court has complete jurisdiction of the administrators of R. C. Puryear, his heirs at law, and the land in question, for the purpose of completing the sale of the land, and it ought to exercise its jurisdiction over the parties and subject matter of the proceeding, until the latter shall be determined according to law. The Court ought not, and will not, in another proceeding or action, take jurisdiction of the same parties and the same subject matter, and do therein what ought properly and regularly to be done in the incomplete proceeding. The law requires consistency in procedure, and in the exercise of jurisdictional authority. It avoids and prevents confusion and multiplicity of actions in respect to the same cause of action, and it will not allow its purpose in these respects to be defeated by the consent, assent, or inadvertence of parties. Hence it will not tolerate the inconsistency and practical absurdity of suspending or stopping an action before it is completed, and do what ought legitimately to be done in it, in another and distinct action.”
*103The reverse is also true; that is,-a motion in the cause is the proper remedy by an administrator to collect past-due payments from a purchaser of land sold to make assets, as well as by such purchaser against an administrator to compel the execution of deed for such land.
“Numerous adjudications have established the general proposition that where relief can be had in a pending cause, it must be there sought. . . . The authorities are also uniform that a court of general jurisdiction, ordering a sale of land, can and will afford a complete remedy in the proceeding against one buying under its decree.” Crawford v. Allen, 180 N. C., 245, 104 S. E., 468.
And for a further reason, it appears from the order of the clerk of 20 January, 1941, approving and authorizing the contract between the petitioners and the Fletcher Lumber 'Company that it was not contemplated that such order was a final judgment, since it concludes with “This cause is retained for further direction.”
Both the resident judge and the judge holding the courts of the district had jurisdiction to issue the orders made by them. This proceeding was before the clerk when he issued the order of 20 January, 1941, approving and authorizing the contract of sale and purchase of the timber belonging to the estate of the decedent, and on 1 February, 1941, when he confirmed and ratified the contract. The resident judge on 22 January, 1942, when he issued the temporary restraining order and notice to show cause why such order should not be continued to the final hearing, was vested with ample authority to deal with the case, as was likewise the judge holding the courts of the district on 18 February, 1942, when he continued the restraining order theretofore issued by the resident judge to the final hearing. “It is established by numerous decisions that the clerk is but a part of the Superior Court and when a proceeding of this character is brought before the judge for his approval, he is vested with ample authority to deal with it. Williams v. Dunn, supra (158 N. C., 399, 74 S. E., 99) ; Smith v. Gudger, supra (133 N. C., 627, 45 S. E., 955); In re Anderson, supra (132 N. C., 243, 43 S. E., 649).” Perry v. Passenger, 219 N. C., 838, 15 S. E. (2d), 365. “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action. . . .” C. S., 637.
The judgment of the Superior Court is
Affirmed.