Upchurch v. Upchurch

• Decision Date: 07 March 1917
• Docket Number: 115.
• Citation: 91 S.E. 702,173 N.C. 88
• Parties: UPCHURCH ET AL. v. UPCHURCH ET AL.
• Court: North Carolina Supreme Court

91 S.E. 702

173 N.C. 88

UPCHURCH ET AL. v. UPCHURCH ET AL.

No. 115.

Supreme Court of North Carolina

March 7, 1917

Appeal from Superior Court, Chatham County; Cox, Judge.

Proceedings for the sale of land of the estate of Isham S. Upchurch deceased, brought by M. R. Upchurch and J. M. Broadwell executors, against G. W. Upchurch and others. From an order refusing to confirm the sale of the land to them, Nevins and Flournoy appeal. Affirmed.

Where property was ordered sold and the highest bid was $26,000 and an advanced bid by responsible parties of $1,500 was made one day after expiration of the time limit but before the bidder appeared to insist on his rights, it was proper to refuse to confirm the sale.

The judgment of the clerk was one refusing to confirm a sale of lands had pursuant to a decree by him duly entered, and the facts pertinent to the present appeal are very well epitomized in the judgment of Judge Cox, as follows:

"It appearing to the court and the court finding as a fact that the sale of the lands and timber described in the complaint filed in the cause, made by the commissioners herein on the 5th day of January, 1917, was in all respects regular; that there were numerous bidders at the sale and the bidding was spirited; that W. T. Hunt, of W. T. Hunt & Bro., was present and bidding; that W. L. Nevins and L. B. Flournoy, trading as Nevins & Flournoy, became the last and highest bidders at said sale for the land and timber at the price of $26,000; that said bid was a fair and reasonable price for said land and timber; that the commissioners made report of the sale without recommendation, on the 6th day of January, 1917; that an advanced bid of $1,500 was filed by W. T. Hunt and S. L. Hunt, trading as W. T. Hunt & Bro., with Hon. James L. Griffin, clerk of the superior court of Chatham county, on the 27th day of January, 1917; that before the filing of the advanced bid no exception had been made to the report of the commissioners and no confirmation of the sale had been made by the court; that on the 29th day of January, 1917, W. L. Nevins, of Nevins & Flournoy, appeared in person and with counsel, before said clerk of the superior court of Chatham county, and moved the court for judgment confirming said sale to Nevins & Flournoy, and for an order requiring the commissioners to make and deliver to said Nevins & Flournoy a good and sufficient deed to said land and timber on payment of the purchase price; that said clerk of the superior court of Chatham county, in the exercise of his sound discretion, refused to confirm said sale; that from such refusal to confirm the said Nevins & Flournoy excepted and appealed to this court."

Upon these facts, his honor, being of opinion that the clerk was acting within his authority in refusing to confirm the sale, entered a decree confirming the judgment, and Nevins & Flournoy, the bidders at the sale, having duly excepted, appealed.

Percy J. Olive, of Apex, and J. C. Little, of Raleigh, for appellants.

Fred W. Bynum, of Pittsboro, for appellees.

HOKE J.

The statute bearing more particularly on the question presented (Revisal, § 2513) is as follows:

"The court may authorize any officer thereof, or any other competent person, to be designated in the decree of sale, to sell the real estate under this proceeding; but no clerk of any court shall appoint himself or his deputy to make sale of real property or other property in any proceeding before him. Such officer or person shall file his report of sale giving full particulars thereof, within ten days after the sale, in the office of the clerk of the superior court, and if no exception thereto is filed within twenty days, the same shall be confirmed: Provided, that any party, after the confirmation, shall be allowed to impeach the proceedings and decrees for mistake, fraud or collusion, by petition in the cause: Provided further, that innocent purchasers for full value and without notice shall not be affected thereby."

And it is contended for defendants that, by virtue of the clause in the section, "and if no exception thereto is filed within twenty days, the same shall be confirmed," they are entitled to have the sale confirmed as of right and notwithstanding the increased bid of $1,500.

Prior to the enactment of this clause and so far as the rights of a bidder at a judicial sale was concerned, the court, before confirmation, had well-nigh unlimited discretion as to the acceptance of the bid. Such a bidder acquired thereby no independent right in the property or in the suit. His offer was considered only as a proposition to buy at the price named, the court reserving the right to accept or reject the bid as it might decree best. Harrell v. Blythe, 140 N.C. p. 415, 53 S.E. 232; Rorer on Judicial Sales (2d Ed.) § 108. In Harrell's Case, Walker, Judge, delivering the opinion, said:

"Where land is sold under a decree of court, the purchaser acquires no independent right. He is regarded as a mere preferred proposer until confirmation, which is the judicial sanction or the acceptance of the court, and, until it is obtained, the bargain is not complete."

And in Rorer, § 108, it is said:

"The court is clothed with an unlimited discretion to confirm a judicial sale or not, as it may seem wise or just. Confirmation is final consent, and, the court being the vendor, it may consent or not in its discretion."

True this author, in a subsequent section, says that the matter of confirmation rests in the sound legal discretion of the court, and the...