In re Bost, 56 N.C. 482, 3 Jones Eq. 482 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 482, 3 Jones Eq. 482

IN THE MATTER OF JOSEPH BOST AND OTHERS.

Where lands are ordered to be sold for partition by a court of equity, the authority of the court to set aside an inchoate sale, and to order a re-opening of the biddings, applies as well to cases where all the parties are adults, as where some of them, or all, are infants.

This was appeal from an order made by his Honor, Judge PeesoN, in the Court of Catawba county, setting aside an incomplete sale of land.

The petitioners in this case were all adults, but several of them were married women, who joined with their husbands. Joseph Bost, the bidder, was one of the petitioners. The prayer was for a salo of the land, of which there were two tracts set forth, and a distribution of the money in certain proportions, as set forth in the petition. The sale was ordered, and at the next term of the Court, the clerk and master reported that he had sold the old, or homestead tract, to Joseph Bost, for a certain sum, which, in his opinion, was less than its value. This opinion was, in part, founded on the affidavit of one Wilfong, who stated that, as his opinion, and offered at the same time to give ten per cent more upon the sum bid. The other tract he reported as having been bid off by Joseph Bost at a fair price. Upon a motion, by the petitioners’ counsel, to set aside the attempted sale of the old tract and confirm the other, Joseph Bost was heard in opposition. lie filed his own affidavit, stating that, in his opinion, he had bid enough for the old tract, and had bid more than the value of the second tract, because be had bid off the first; and it was all-important to furnish timber for keeping up the other. He insisted that, as there were no infants, who had a right only to invoke the protection of the court of equity, a re-sale could not be rightfully, and according to the rules of courts of equity, ordered.

His Honor ordered that the attempted sales, as to both tracts, be set aside and a re-sale ordered as to both. Joseph Bost, the bidder, being dissatisfied with the decision as to the old tract, prayed an appeal to this Court, which was allowed.

Fowle, for the petitioners.

Boyden, for the biddei’.

Battle, J.

A sale made by the clerk and master, under an order of a court of equity, is in no case complete until it is reported to, and confirmed by, the court. Until then, the so-called purchaser is only a bidder, making an offer of a certain price for the land, and showing his ability to pay by giving bond with good and sufficient security. If the court be satisfied, from the master’s report, that the price offered is a full and fair one, it will accept the bid by confirming the report and declaring the bidder to be purchaser. But, if, on the contrary, the court be informed by the master’s report, or by affidavits, that the sum bid for the land is not its full value, it will be its duty to set aside the report and order a re-sale of the land. Of this, the so-called purchaser has no 1-ight to complain, because he knew, or ought to have known, that his bid was made subject to the condition of its acceptance or rejection by the court; see Scott v. Nesbitt, 3 Bro. Ch. Cas. 475; Williams v. Dale, 3 John. Ch. Cas. 271; Lanoy v. McPherson, Ibid. 425. These cases show that where the report of the sale has not been confirmed, the biddings may be opened on a proposed advance of price merely. The counsel for the would-be purchaser, admits this to be the rule when the sale is made for the benefit of infants, but contends that it is different when the order of sale is obtained at the instance, and for the benefit, of adults, who are able to tfjke care of their own interests. The reply is, that from the very nature of the proceeding the sale is only a conditional one, and the condition is that the court must be satisfied that the sum offered is a full and fair price for the land sold. Besides, in the present case, the counsel for the petitioners has very properly said that they, being, most of them, married women, have as strong a need of the protective power of the Court as if they were infants. Upon the whole, we are satisfied that his Honor, in the Court below, committed no error in directing the report of the master, as to the sale of the principle tract of land, to be set aside, and ordering a re-sale óf it. The report as to the other tract was set aside at the instance of the bidder himself, and of course, he has no' right to object to that.

The interlocutory order is affirmed, and this will be certified to the Court below as the law directs.

Bee CueiaM, Decree accordingly.