Byerly v. Delk, 528
Decision Date | 04 June 1958 |
Docket Number | No. 528,528 |
Citation | 103 S.E.2d 812,248 N.C. 553 |
Court | North Carolina Supreme Court |
Parties | W. B. BYERLY, Commissioner, v. R. G. DELK. |
Haworth & Riggs, High Point, for plaintiff, appellant.
No counsel contra.
It is established by authoritative decisions of this Court that where the purchaser at a judicial sale fails to comply with his did, ordinarily the remedy is by motion in the cause, and not by independent action. On such motion the jurisdiction of the court is broad enough to give either the purchaser or any other interested party the relief which the situation as presented requires. The procedure by motion in the cause provides expeditious relief, prevents multiplicity of suits, and saves costs. If an independent action is brought, ordinarily the court ex mero motu will dismiss it. Ex parte Wilson, 222 N.C. 99, 22 S.E.2d 262; Marsh v. Nimocks, 122 N.C. 478, 29 S.E. 840; Long v. Jarratt, 94 N.C. 443, 444.
In Long v. Jarratt, supra, a purchaser at a judicial sale assigned his bid. The assignee paid the purchase price but died before deed was executed. His administrator and heirs at law instituted an independent action to compel execution of the deed. Merrimon, J., speaking for the Court, said:
'Therefore, when the Court sees its jurisdiction, already attached as to the same parties and the same subject matter, in a former action not yet ended, interfered with by another subsequent action, in respect of a matter that ought properly to be considered and determined in the former action, the Court ought, ex mero motu, to refuse to proceed in respect to such matter, and send the parties complaining, to seek their remedy and relief in the former and proper action, and if the subsequent...
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Page v. Miller, 21
...not paid, the bidder's equitable estate could, upon notice, be sold and judgment entered against it for the deficiency. Byerly v. Delk, 248 N.C. 553, 103 S.E.2d 812. It follows that Harriet M. Rodman, the judgment debtor, was effectively divested of all title and interest in the lots when t......
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Weaver v. Early
...in which a party could by motion in the cause achieve what he is attempting to achieve in the subsequent action. Byerly v. Delk, 248 N.C. 553, 103 S.E.2d 812 (1958) and Lumber Co. v. Wilson, 222 N.C. 87, 21 S.E.2d 893 The complaint in this case shows that at the time it was filed there was ......
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