Proctor v. Pinley

• Decision Date: 15 December 1896
• Citation: 119 N.C. 536,26 S.E. 128
• Court: North Carolina Supreme Court
• Parties: PROCTOR. v. PINLEY.

26 S.E. 128

119 N.C. 536

PROCTOR.

v.PINLEY.

Supreme Court of North Carolina.

Dec. 15, 1896.

Auctions—Statute of Frauds—Harmless Error.

1. The writing, by the auctioneer, on the side of an advertisement for sale of land at public auction, of the name of the last and highest bidder, with the amount bid, satisfies the statute of frauds.

2. Error in admitting evidence of sale of land is harmless, the sale being afterwards proved by competent evidence, and there being no contradictory evidence.

Appeal from superior court, Lincoln county; Bryan, Judge.

Action by T. H. Proctor, executor of Joseph B. Shelton, against S. G. Finley. Judgment for plaintiff. Defendant appeals. Affirmed.

Justice & Finley and Jones & Tillett, for appellant.

D. W. Robinson, for appellee.

FURCHES, J. This is an action commenced before a justice of the peace for $50, due for the purchase of land. The defendant pleads the general issue and the statute of frauds. The case discloses these facts: That Shelton was the mortgagee of the land sold. That he is dead, and the plaintiff is the executor, and as such executor he advertised and sold the land at public outcry, when the defendant became the last and highest bidder and purchaser, Nixon being the auctioneer. Before the land was offered, Nixon read the advertisement, defendant being present; and, immediately upon the land being knocked off to defendant, he wrote the name of the defendant on the paper containing the advertisement. This was done in the presence of the defendant. But by inadvertence he wrote the defendant's name on the side of the advertisement, and not under it, as he intended to do. The following is the advertisement, and defendant's name and price bid, as written by the auctioneer, Nixon:

S. G. Finley $50.00

Sale of Valuable Land.

A mortgage deed having been executed by L A H. Wilkinson and wife to Joseph B Shelton, dated Dec. 10, 1889. which Is duly registered in Lincoln County Registry, Book 61, p. 598, and default having been made in the payment of the debt secured by the said mortgage: Now by virtue of the power vested in me by the said mortgage and my office as executor of Joseph B Shelton, I will sell for public auction for cash, at the court house door in Lincoln county, on

Monday, 2nd day of March, 1896,

the land described and conveyed in the said mortgage, towit: Lying in Catawba Springs Township, adjoining the lauds of H. C Bark-ley and others, beginning at a pine Kids corner and runs N 81 E 51 P to a hickory and gum near branrh; then N 27 W 32 P to a pine; then E 99 P to a gate; then S 15 E 65 Pto a stone; then S 48 W 98 P to a sassafras; then N 62 1/2 W 62 P to the beginning containing by estimation 45 acres more or less. Being the interest of LA H Wilkinson in said tractof land, January 30th, 1896. T H Proctor. Exr.

of Jos B Shelton.

The defendant contended that this was not a compliance with the statute of frauds (Code, § 1554). The advertisement is a proposition by the plaintiff to sell what interest he had in the land, therein fully set forth and described, it Is true, to the last and highest bidder; and, as $50 is all that he was offered, it was an offer to sell for $50. And the defendant's bid of $50was an acceptance of plaintiff's offer. This constituted a sale—an offer to sell at a certain price, and an acceptance by the defendant; the meeting of the minds of plaintiff and defendant. It cannot be contended that this did not amount to a contract and a sale, unless the statute of frauds intervenes, and prevents its enforcement, and this is the question in the case. The auctioneer, Nixon, was the agent of the plaintiff to sell this land, and the law constituted him the defendant's agent, when he became the last and highest bidder, to complete the sale by meeting the requirements of the statute of frauds. And this he is authorized to do by signing the bidder's name to the contract, or to such memorandum of the contract as will satisfy the statute of frauds. This signing by the defendant's agent the law construes into an acceptance of the proposition of plai...