Mason v. Osgood, 64 N.C. 467 (1870)

June 1870 · Supreme Court of North Carolina

64 N.C. 467

LUKE MASON v. JAMES OSGOOD, Adm’r, &c., and others.

One who alleges that, as last and highest bidder, he had purchased lands at a sale made by an administrator under a license from the (late) County Court, and tendered a good note for the purchase money, btit that the administrator refused to make title, and did not report the sale to Court, as was his duty, but had conveyed to a third person: should have sought relief by application to the Court which granted the license, and in the ease made by the petition to sell, and cannot maintain a biU in equity against the administrator and the purchaser-, asking for title, &c.

According to the plaintiff’s case, the administrator had no license to sell to the party to whom he had conveyed, and therefore such sale was a nullity, and the plaintiff could not proceed against him under the idea that he was a trustee, &c.

Bill in equity, filed February 1868, and argued upon demurrer, before Thomas,' J., at Spring Term 1869 of Chayen Court.

Tbe plaintiff alleged that tbe defendant Osgood, as administrator of one Hood, bad obtained a bcense from tbe County Court of Craven to sell a tract of land, wbicb be described, and that at tbe sale (Dec. 9tb 1867,) be bad become tbe last and highest bidder, for $115.00, and having immediately thereafter offered to pay a part of the price in U. S. currency, and to give a note with good security for tbe balance, subsequently (January 28th 1868,) tendered a bond with good security for tbe whole, which Osgood refused to accept, but not on account of its insufficiency; and that since tbe sale Osgood bad conveyed tbe land to one Hume, also made a defendant, for tbe price of $165.00, Hume then knowing that tbe plaintiff had purchased as above. Tbe prayer was for an injunction against both, for a title, &c.

Tbe defendants demurred.

His Honor dismissed tbe bill; and tbe plaintiff appealed.

Houghton and Phillips & Merrimion, for the appellant.

Battle & Sons and B. G-. Lewis, contra.

Dick, J.

A sheriff has authority under an execution to levy upon and sell the lands of the judgment debtor. The purchaser at such sale has a right, upon the payment of the purchase money, to demand a deed from the sheriff, and when the deed is executed, the title will have relation to the time of sale. An administrator’s authority is more limited where he sells the lands of the intestate under a license obtained from Court. He is a mere agent of the Court to execute a naked power, and a purchaser acquires no right to the land until the sale is confirmed, and title made, under an order of the Court granting the power of sale. If the administrator fails to report the sale, the purchaser may apply to the Court by a motion in the cause, for a rule to compel such return, so that the Court may confirm the sale if it sees proper.

In our case, as the sale was not confirmed, the plaintiff" has no right to the land,-and no claim to equitable relief.

There is another objection to the relief demanded, apparent on the face of the bill of the plaintiff. The defendant Hume has not the legal title, and therefore cannot be declared a trustee for another person. The administrator had no authority to make a sale to the co-defendant, and of course no title passed. The title is still in the heirs-at-law of the intestate, and they are not parties. The Superior Court now has no power to compel the administrator to make a report of the sale. That relief ought to have been sought by a motion in the cause, in the County Court.

There is no error.

Pee Cueiam. Judgment affirmed.