McNeill v. Shaw, 62 N.C. 91, 1 Phil. Eq. 91 (1867)

Jan. 1867 · Supreme Court of North Carolina
62 N.C. 91, 1 Phil. Eq. 91
DAVID McNEILL, and others v. JOHN SHAW

DAVID McNEILL, and others v. JOHN SHAW.

Where a commissioner, appointed by a Court of Equity to sell land “for cash,” (in conformity with a representation that it would be best to sell for “ ready money,”) received in payment Confederate Treasury notes, the sale was set aside.

Motion, to set aside a sale that had been made under an order of the Court of Equity for Cumberland, at Fall Term, 1864.

“ In the matter of David McNeill and others,” a petition had been filed to sell certain land held by the petitioners in common, and at Fall Term, 1864, an order of sale was made, which, reciting that the interests of the tenants in common would be promoted by a sale for “ready money,” “allowed the sale to be made for cash,” and appointed the above named David McNeill commissioner. At the next term, viz: Spring Term, 1866, the commissioner reported that on the 24th January, 1865, he had made sale as ordered, at which time John Shaw became the highest bidder, and.paid the price over in Confederate Treasury notes.

Thereupon cross motions were made by the petitioners and by the purchaser, to set aside, and to confirm the sale. His Honor, Buxton, J., ordered the sale to be set aside, and the purchaser appealed.

Shepherd and W. A Wright, for the petitioners.

W.. McL. McKay, for the purchaser.

Pearson, C. J.

The commissioner was directed to sell for “ cash,” and in another part of the order the word money is used. These two words have a different legal meaning, which certainly does not embrace “ Confederate Treasury notes.” So the commissioner did not make the sale in compliance with his order, and for this reason the sale ought to have been set aside.

*92This view of the matter, excludes the point made on the argument, that, if the order had been to sell for Confederate Treasury notes, his Honor should, in setting aside the sale, have imposed upon the petitioners the terms of making compensation to the bidder, by paying to him the money value of the Confederate notes, at the time he paid them to the commissioner.

There is no error. This will be certified.

Per Curiam.

Decree accordingly.