In Re Longley., 437.

• Decision Date: 13 December 1933
• Docket Number: No. 437.,437.
• Citation: 205 N. C. 488,171 S.E. 788
• Parties: In re LONGLEY.
• Court: North Carolina Supreme Court

171 S.E. 788

205 N. C. 488

In re LONGLEY.

No. 437.

Supreme Court of North Carolina.

Dec. 13, 1933.

Appeal from Superior Court, New Hanover County; Cranmer, Judge.

Proceedings in the matter of the foreclosure under a deed of trust made by H. E. Longley to the Carolina Mortgage Company, trustee, dated June 15, 1927, the note thereby secured having been assumed by W. L. Scruggs and wife and another, wherein W. G. Broadfoot was adjudged in contempt. From a judgment of the superior court, W. G. Broadfoot appeals.

Judgment reversed.

N. C. Code of 1931 (Michie), § 2591, sets forth the method for the sale of land by trustees, mortgagees, etc. A contempt proceeding was instituted against W. G. Broadfoot growing out of noncompliance with his bid. The clerk dismissed the contempt proceeding, but the order said: "Upon payment to Trustee (movant) of all rents collected on said property from January 1, 1933, to May 31, 1933."

On appeal to the superior court, the judgment in that court states: "Upon appeal the foregoing order of the Clerk is hereby in all respects affirmed."

The clerk gave notice to appellant "why you should not be adjudged in contempt of Court for your failure to comply with the judgment rendered in this cause, " etc. In answer appellant W. G. Broadfoot states that he has neither collected nor received any rents from said property from the 1st day of January, 1933, to May 31, 1933, and therefore has no rents to account for or to pay over as in said order provided.

The clerk made the following order: "And it Appearing Further that said W. G. Broadfoot has collected no rent from the property referred to in this proceeding, from the first day of January, 1933, until the 31st day of May, 1933, and, therefore, has no rent payments to account for as provided in the Order heretofore entered in this cause. And it is Now Ordered and Adjudged that the said W. G. Broadfoot has fully complied with the order heretofore entered by the undersigned, Clerk of the Superior Court of New Hanover County and approved by the Honorable W. A. Devin, Judge Presiding, and this proceeding is hereby dismissed."

The record discloses: "That thereafter, on the 22nd day of June, 1933, the Clerk of the Superior Court signed the following judgment: '6/22/33/ W. G. Broadfoot not having complied with above order is hereby found guilty of contempt of Court upon the grounds that either he or Mrs. Lizzie W. Broadfoot, according to statements filed by two real estate agents, have collected certain amounts of rents and applied same to the account of Mrs. Lizzie W. Broadfoot, the wife of W. G. Broadfoot. No further testimony was taken at this hearing, after delivery to the Clerk of statements of parties handling the property, which statements are hereto attached and constitute testimony on which this order is based.'"

W. G. Broadfoot excepted and appealed to the superior court. The court below in its judgment stated: "And it appearing that the Clerk did not have jurisdiction to make this order of June 22, 1933, adjudging the said W. G. Broadfoot in contempt, the said order is overruled."

The judgment further gives an itemized statement of rents, and in it is the following: "Net amount paid Mrs. Broadfoot--$96.50. It is now, on motion of C. M. Symmes, attorney for movant: Considered, Ordered and Adjudged that the said W. G. Broadfoot pay to C. M. Symmes, attorney for the movant, the sum of $96.50, representing rents collected on the property involved for the five months period from January 1st, to May 31st, 1933, in accordance with the Order of Judge Devin, hereinbefore mentioned, within ten days from this date. This July 25, 1933."

The respondent W. G. Broadfoot excepted and assigned error to the judgment as rendered, and appealed to the Supreme Court.

K. O. Burgwyn, of Jackson, for appellant

C. M. Symmes, of Wilmington, for appellee.

CLARKSON, Justice.

The question involved: The appellant raised the bid within ten days after a sale under foreclosure. The property was resold, was knocked down to him at the advanced bid. He failed to pay the purchase price, and was attached for...