Mason v. Osgood

• Decision Date: 30 June 1870
• Citation: 64 N.C. 467
• Court: North Carolina Supreme Court
• Parties: LUKE MASON v. JAMES OSGOOD, Adm'r and others.

64 N.C. 467

LUKE MASON

v.JAMES OSGOOD, Adm'r and others.

Supreme Court of North Carolina.

June Term, 1870.

*1 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, but 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 case made by the petition to sell, and cannot maintain a bill 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 CRAVEN Court.

The plaintiff alleged that the defendant Osgood, as administrator of one Hood, had obtained a license from the County Court of Craven to sell a tract of land, which he described, and that at the sale (Dec. 9th 1867,) he had become the 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 the balance, subsequently (January 28th 1868,) tendered a bond with good security for the whole, which Osgood refused to accept, but not on account of its insufficiency; and that since the sale Osgood had conveyed the land to one Hume, also made a defendant, for the price of $165.00, Hume then knowing that the plaintiff had purchased as above. The prayer was for an injunction against both, for a title, &c.

The defendants demurred.

His Honor dismissed the bill; and the plaintiff appealed.Haughton and Phillips & Merrimon, for the appellant .

Battle & Sons and R. 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 liccnse obtained from Court. He is a...