Sutton v. Craddock

Decision Date10 October 1917
Docket Number220.
Citation93 S.E. 781,174 N.C. 274
PartiesSUTTON ET UX. v. CRADDOCK ET UX.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Lenoir County; Lyon, Judge.

Action by W. L. Sutton and wife against C. G. Craddock and wife. From the decree of sale, W. T. Hines, bidder, appeals. Affirmed.

Action to sell land affected with a contingent interest under section 1590 of Revisal, heard on pleadings, record, and facts in evidence. On the hearing it appeared: That the real estate in question formerly belonged to W. C. Fields deceased, who devised the same in his last will and testament to his daughter, Annie Fields Sutton, for her natural life and, after her death, if she shall have married and have children or child by such marriage, then to such child or children, and if she does not marry, then to her brothers and sisters who may survive her, to them, their heirs and assigns. That said Annie Fields Sutton has been married for six or seven years without having had any child, and the parties in interest, to wit, feme plaintiff and defendants her brother and sisters, the children and devisees of W. C Fields, desiring to sell the property which is going to waste for want of proper care, bargained the same to one L. C. Moseley at the price of $21,000, and instituted the present action, as stated, to make sale and conveyance of said land pursuant to said bargain. The court, on hearing the testimony, makes extended findings of fact relative to the proposed disposition of the property, among others, that at the time of bargain made and suit instituted the price offered was an adequate one, and that "the interest of all parties required and would be materially enhanced by a sale of the land to L. C. Moseley at the price of $21,000, with interest thereon from January 1, 1917, being amount and terms of the offer." It further appeared: That during the term the decree was entered one W. T. Hines filed a written stipulation whereby he agreed to raise the bid 10 per cent., and later in the term he increased his offer to $25,000. That before suit instituted, said Hines, who was negotiating with the parties for the purchase of the land, had withdrawn an offer of $19,000, which he had made for the land, saying that he did not care to buy at that price. Thereupon the owners made the bargain with L. C. Moseley, as stated, at $21,000. That, soon after making the trade, said Moseley, at the instance of the owners, had entered into possession of the property and expended, in money and material and improving said land, as much as $2,000, and had given almost his entire time to the purpose, and had thereby greatly enhanced its value, and that neither he nor his bargainors had any notice it was Hines' purpose to make an increased bid till it was offered in court pending the proceedings. In this connection, his honor finds that the price offered by Moseley, when considered in reference to a reasonable compensation to him for his time and effort in improving the home and the sum of $2,000 in money and material actually expended, is a more desirable bid than that of said Hines. There was decree of sale to Moseley at $21,000, retaining the proceeds to be invested, pursuant to law, and the proposed purchasee, W. T. Hines, appealed.

Dickinson & Land, of Goldsboro, for appellant.

Loftus, Dawson & Manning, of Kinston, and McLean, Varser & McLean, of Lumberton, for appellee Moseley.

HOKE J.

It seems that in an action of this character, the appellant, W. T. Hines, by reason of his unaccepted offer to purchase, has no such interest in the subject-matter of this litigation, and has acquired no such status in this suit as to give him the right to question the proceedings by appeal or otherwise. In Battle's Revisal, § 547, the right of appeal in civil actions generally is conferred on "any party aggrieved," and we find no decision that would recognize this proposed purchaser as coming within the terms or meaning of the statute. Upchurch v. Upchurch, 173 N.C. 88, 91 S.E. 702; Faison v. Hardy, 118 N.C. 142, 23 S.E. 959; Green v. Harrison, 59 N.C. 253, 82 Am. Dec. 415; In re Switzer, 201 Mo. 66, 98 S.W. 461, 119 Am. St. Rep. 731, with extended note by the editor; 2 R. C. L. title, Appeal and Error, § 33. But if the right of appeal be conceded, it is clear, we think, that on the facts presented in the record the sale to L. C. Moseley has been properly confirmed.

It is fully established with us that, in an action under this statute and in proper instances under its general powers and when the interest of the parties will thereby be best promoted, a court of equity may make a disposition of property by private sale (Thompson v. Rospigliosi, 162 N.C. 145, 77 S.E. 113, and authorities cited); and where a sale is made under its decree, public or private, the question of confirmation is vested in the sound, legal discretion of the presiding judge, and while it is generally customary to refuse confirmation and order a resale in case of responsible and increased bid, as much as 10 per cent., this course is not always obligatory. Speaking to the question in the recent case of Upchurch v. Upchurch, supra, the court said:

"But while these rules are usually observed, they are not absolutely imperative, and the question of confirming a sale is referred, as stated, to the sound legal discretion of the court, and in the proper exercise of such discretion the court, under certain conditions, may reject an increased bid and confirm a sale when it appears from the relevant facts and circumstances that such a course is wise and just and for the best interests of all parties whose rights are being dealt with in the suit," citing Thompson v. Rospigliosi, supra; Uzzle v. Weil, 151 N.C. 131, 65 S.E. 755; Wood, Adm'r, v. Parker, 63 N.C. 379.

How far and in what cases these principles may be modified by chapter 146, Laws 1915, requiring certain sales...

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1 cases
  • Cherry v. Gilliam
    • United States
    • North Carolina Supreme Court
    • February 29, 1928
    ... ... agreement by which pending the time limited the mortgage debt ... was satisfied and canceled. See Sutton v. Craddock, ... 174 N.C. 274, 93 S.E. 781; Upchurch v. Upchurch, 173 ... N.C. 88, ... ...

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