In re Yates, 59 N.C. 212, 6 Jones Eq. 212 (1861)

June 1861 · Supreme Court of North Carolina
59 N.C. 212, 6 Jones Eq. 212

In the matter of LEVI S. YATES, Guardian.

Upon the refusal of a bidder at a sale of land by the master, under a decree of Court, to comply with, his bid, it is not proper, in the first instance, to order a resale of the land, and that the delinquent bidder pay the difference between the former and the latter sales. The proper course is for the master to report the facts to the Court, and for the bidder to bo put under a rule to show cause why he shall not comply with his contract.

Tins was an appeal from a decretal order made by the Court of Equity of Martih county.

*213A petition bad been filed by Levi S. Yates, guardian of Sarah E. Moore, for the sale of certain lands, lying in Martin county, and a decree of tbe Court for a sale passed accordingly, to be made by O. B. Hassell, the clerk and master of tbe Court. At tbs next term of the Court, (Spring Term, 1861,) the master reported (among’ other sales) that be bad offered tbe ■i Gardner tract” for sale, when A. II. Coffield, for Coffield and Bu”n!iiJI, bad become tbe last and highest bidder at the mice ox i)6,000; that ibis tract consisted of two parcels, one >; which contained two hundred acres, which is described in die report; tbe other contained one hundred and sixty acres, which, was subject to a lease of twenty-four years, of which ■.s'.voj’.toon years was unexpired. The master further reports'L, that after having at first promised to comply with the -creas of che sale, the said bidders became dissatisfied with .heir bid, and after much vacillation, they finally gave him _otico that they declined to give bond and surety according ■a the conditions made known by him at the sale. The peti- ; loner, Yates, filed affidavits at this term, going to show the vrplicit forms on which the sale was made, and that the precise character and quantity of the two parcels were distinctly nade known by the master to A. EL Coffield previously to Ms making the bid for himself and Barnhill.

’ The transcript sets out that, at this term, the following order was made in the cause :

“ Ordered that the lands purchased by Coffield, for Coffield and Barnhill, be resold' by the master, ánd that the purchaser pay the difference, if any, between the first and second sale of it, he, Coffield, having failed to comply with tbs terms of sale.” To which is added the further entry: i£ H'rom the order and decree of the Court, that the purchasers pay the difference, A. H. Coffield and T. E. Barnhill pray an appeal to tbe Supreme Court, which is allowed to them by bis Honor.”

B. JP. Moore, for Yates.

Wmston, Jr., for Coffield.

*214PeabsoN, C. J.

There is error in the decretal order appealed from.

The orderly mode of proceeding was for the Court to accept the bid of Ooffield and Barnhill by confirming the contract of sale, and .then upon the matter set out in the report, to enter a rule against them, to show cause why they should not be required to comply with the terms of the sale. On the return of the rule, the Court, considering the whole matter, as well the facts set out in the report, as those which might be relied on by them, could dispose of it in one of three ways:

1. By an order that Ooffield and Barnhill do execute and perform what they had undertaken to do, according to the terms of their bid; which would, in effect, be a decree for the specific performance of the contract — the Court having jurisdiction to make the decree as an order in the cause, as fully as on “ an original bill for specific performance,” by reason of the fact that the contract is within its cognizance, and all the necessary parties are before it.

2. By an order releasing Ooffield and Barnhill from their bid, rescinding the contract and directing the land to be sold over again.

3. Which is the middle course : By an order without absolutely releasing them from their bid and rescinding the contract, that the land be sold over again, they undertaking, as a condition precedent to this order of resale, which is made for their benefit and on the basis of their, liability to a decree for a specific performance, to pay the costs and charges incident to a second sale, and also to make good the difference in the price, in the event that as high a bid is not obtained; Harding v. Yarbrough & Cosby, (not reported,*) decided at June Term, 1856 ; see also Claton v. Glover, 3 Jones’ Eq. 371.

*215For the error in not pursuing this orderly mode of proceeding, the decretal order must be set aside.

This extends to the whole of the order in respect to the land bid off by Ooffield and Barnnill; for, although it was- suggested by their counsel, that the part of the order, which directs resale, was not appealed from, still, that was incidentally made with reference to the part appealed from,.and the whole must be treated as connected together and making but one order, and not two distinct and independent orders, so as to allow the entire subject to come before the Court, and leave all the parties concerned, to take such action as they may be advised.

For the purpose of leaving the question entirely open upon *216its merits, ibis Court declines to express any opinion as to whether the orders, made in the Court below, do or do not amount to an acceptance of the bid of CoíííeM and. Barnhill, or to a ratification of the contract if the master exceeded Ms power ; or upon the question whether, supposing the master to have exceeded his power, OoffielJ. and Barnhill were not at liberty to withdraw their bid at any time before the action of tbe master was ratified.

Pee CuiuaM, Decretal order reversed.