Broughton v. Askew, 62 N.C. 21, 1 Phil. Eq. 21 (1866)

June 1866 · Supreme Court of North Carolina

62 N.C. 21, 1 Phil. Eq. 21

MATILDA BROUGHTON, and others v. WILLIAM F. ASKEW.

A question having been made, whether one who, upon a purchase of a- slhve at a sale’By a Master, .had paid cash instead of giving :bond, as required by the order off sale, could not be'compelled to comply with that order; it was held that, inasmuch as one incident to the relief sought would be to give an option to the defendant to have the biddings opened again, the intervening abolition of slaveryrendered.it unnecessary to decide the question.

At Spring Term,-1860, of the Court of Equity for Wake county, the petitioners had obtained am order directing the Master to sell certain slaves- upon a credit of six months. At the sale, upon the 1st of May, 1860> the defendant having inquired about it, was told by the deputy of the Master who conducted the sale, that he would be allowed to pay cash for any purchase he might make. Thereupon he purchased one of the slaves, and paid the amount in cash.. At Eall Term, 1860, the Master reported that this sale had ’been made for cash.

At Fall Term, 1862, an order was made, which, after reciting that the defendant had bid off one of the slaves ins question, and that be had not complied with the terms of the sale by executing a bond with surety as provided by the decree, — directed the defendant to appear at the next term and show cause why he should not complete his purchase, according to the terms of the decree.

At Fall Term, 1863, Askew filed an affidavit, stating what had occurred (as above) at the sale, and that this had afterwards been made known to the Master,, and approved of by him.

At Spring Term, 1864, it was-ordered that the rule against Askew should he discharged, and thereupon the petitioners appealed to the Supreme Court.. The case was argued at June Term,. 1864, of this court, and retained under advisement.

K. P. and B. H. Battle and Phillips, for the petitioners.

Winston, Sen., and B. O. Lewis, for tue defendant.

Pearson, C. J.

The emancipation of slaves makes it unnecessary to decide whether the petitioners have a right to require Askew to execute a note for the purchase money, or whether he has complied with the terms of sale by his payment of the money. For it is certain that he made his bid under the impression that the payment of the money would be a compliance with the terms of sale; and, if he was under a mistake, he is entitled to permission to withdraw his bid. The effect of this is, to open the bid-dings and leave the slave unsold. This brings the matter within the principle of Kidd v. Morrison, decided at this term.

The order to show cause is dismissed without prejudice ; the parties each to pay their own costs.

Per Curiam.

Decree accordingly.