Burgin v. Burgin

• Decision Date: 31 January 1880
• Citation: 82 N.C. 196
• Court: North Carolina Supreme Court
• Parties: ROBERT H. BURGIN and others v. JOHN D. BURGIN and others.

82 N.C. 196

ROBERT H. BURGIN and others

v.JOHN D. BURGIN and others.

Supreme Court of North Carolina.

January Term, 1880.

PETITION to sell land for assets (transferred from the late court of equity) heard at Fall Term, 1879, of MCDOWELL Superior Court, before Schenck, J.

This was a bill filed in the court of equity to sell land for partition between plaintiffs and defendants as heirs at law of James Burgin, deceased, and one other claiming the share of one of the heirs by assignment, and at the sale under a decree in the cause, defendants L. E. Burgin and John D. Burgin became purchasers of one of the tracts at eighteen hundred and sixty-eight dollars and secured the same by their bond with surety to the clerk and master, and on report filed, the sale was confirmed by the court.

On the organization under the constitution of 1868, the said cause was transferred to the docket of the superior court, (made successor to the courts of equity in causes therein pending,) and an order was made referring it to a referee to ascertain and report the distributive shares of each person entitled, how much received by each, and how much still due, and whether the purchasers had paid the purchase money, and if so, to whom, and how much.

The referee reported that the purchasers had paid up in full the shares of all the heirs, as appeared by their respective receipts for the same, and that all the purchase money had been paid except a balance of sixty-three dollars and thirty-two cents, which was still due and owing, and on the filing of the report, the same was confirmed by the court.

While matters stood in this situation and without any title having been conveyed to said purchasers, a notice was served on them by the plaintiff in the suit through their attorneys of a motion to be made in the cause at fall term, 1879, to have the lands purchased by them sold by decree of the court to satisfy the purchase money, and at the hearing of the motion, R. H. Burgin by affidavit showed that about 1866 the purchasers executed their note to him for his wife's share in the proceeds of sale, for which he gave receipt, and so likewise to some others of the heirs, and that the notes so given had never been paid.

In opposition to this motion, Thomas Y. Lytle and B. F. Bynum, by leave of the court, were received upon their affidavit to show that they were the owners of the land (now sought to be sold) as purchasers at a sale by the sheriff of McDowell county, under an execution against John D. Burgin. Besides the facts deposed to by these affidavits, His Honor found that at the time the note of the purchasers was executed to R. H. Burgin a credit for the amount, by consent of said R. H. Burgin, was entered on the original bond of the purchasers to the clerk and master, and that John D. Burgin is insolvent, and no part of said note has been paid.

Upon these facts R. H. Burgin, by counsel, moved His Honor for an order of account to ascertain the unpaid purchase money, and of the transactions with the clerk and master in regard to the fund, with a view to subject the land to the payment of the note given to him, and for such orders as were necessary to enforce the same, but His Honor disallowed the motion, and the plaintiffs appealed.

Mr. W. H. Malone, for plaintiffs .

Mr. D. G. Fowle, for defendants .

DILLARD, J., after stating the case.

We think His Honor, upon the affidavits in support of the motion and in opposition thereto, and on the facts found by himself, was in error in disallowing the motion to ascertain the unpaid purchase money, with a view to a specific performance of the contract by the purchasers under the orders of the court.

By the confirmation of the sale, the heirs, selling through the agency of the court, had the right to have a specific execution of the contract by payment of the purchase money on the part of the purchasers, and were themselves under obligation to perform their part of the contract by executing title simultaneously, or having it done through a commissioner appointed for that purpose. Ex Parte Yates, 6 Jones Eq., 306; Edney v. Edney, 80 N. C., 81; Etheridge v. Vernoy, 80 N. C., 78; Rorer on Judicial Sales, § § 152, 153; Miller v. Feezor, ante 192.

Here, it appeared from the bill in equity, and by the affidavit of R. H. Burgin, to whom the...