Weir v. Weir, (No. 425.)

• Decision Date: 14 November 1928
• Docket Number: (No. 425.)
• Citation: 145 S.E. 281
• Court: North Carolina Supreme Court
• Parties: WEIR. v. WEIR.

145 S.E. 281

(196 N.C. 268)

WEIR.

v.WEIR.

(No. 425.)

Supreme Court of North Carolina.

Nov. 14, 1928.

Appeal from Superior Court, Union County; N. A. Townsend, Special Judge.

Action by John H. Weir against John T. Weir. From an order granting a motion by Mrs. M. J. M. Weir and others, executors of the will of John H. Weir, deceased, to set aside a sale under execution to satisfy judgment theretofore entered, W. H. Collins, the purchaser, appeals. Error.

Motion by Mrs. M. J. M. Weir and W. H. Wood, executors under the will of John H. Weir, deceased, to set aside and declare void a sale of lands, made under execution, issued in the present cause, to satisfy the judgment of $3,700 and interest, rendered during the lifetime of John H. Weir.

Movants ask that the sale be set aside and a resale ordered upon four grounds:

(1) For that the deputy sheriff, B. Frank Niven, who conducted the sale, offered the property en masse, and declined to sell only a part of it that day, as requested by R, Lee Weir, son of Mrs. M. J. M. Weir, who attended the sale for the purpose of bidding on the property and protecting the interests of his mother.

(2) Because, from a conversation had with B. Frank Niven, deputy sheriff, just prior to the sale, the said R. Lee Weir was put under the impression that the bid, made on that date, could be upset at any time within 20 days by filing an increased bid of 10 per cent. which was offered within said time, and is still subsisting.

(3) That the bid of "three hundred ten dollars and taxes, " made by W. H. Collins, who became the last and highest bidder at said sale, was ambiguous and uncertain, in that the property was sold subject to three mortgages, according to announcement, while the amount of taxes, and the number of years due, was not stated, and this "disconcerted and surprised" the said R. Lee Weir, by reason of which, he was "misled and deceived, without fault on his part, when he could and would have bid a substantially larger sum than the amount of W. H. Collins' bid, if said bid had been explicit in amount and unambiguous in its terms."

(4) That the bid of W. H. Collins is entirely inadequate for the property sold; and, if allowed to stand, movants will realize only a small sum to be applied on the judgment rendered herein, whereas a much larger amount could and would be obtained on a resale. But the extent of the alleged inadequacy is not stated.

The clerk found the facts, substantially as alleged by the movants, and, upon such finding, vacated and set aside the sale as requested. This order was approved by the judge of the superior court, and the purchaser, W. H. Collins, appeals, assigning errors.

John C. Sikes, of Monroe, for appellant Collins.

H. B. Adams, of Waxhaw, for movants.

STACY, C. J (after stating the facts as above). [1, 2] That the movants have properly proceeded by motion in the cause is established by the decisions in Williams v. Dunn, 163 N. C. 206. 79 S. E. 512, Beckwith v Mining Co., 87 N. C. 155, and Foard v. Alexander. 64 N. C. 69. And that they are entitled to make such motion is supported by the decisions in Andrews v. Pritchett, 72 N. C. 135, and Mc-Canless v. Flinchum, 98 N. C. 358, 4 S. E. 359.

"It is clearly the duty of a sheriff to conduct his sales in a prudent and just manner, so as to realize a fair price for the property sold. And if he does otherwise the sale is voidable. Voidable by whom? The general answer is, voidable by any person injured thereby: —by the defendant in the execution; by the plaintiff in the execution; by any creditor of the execution debtor." Andrews v. Pritchett, supra.

But it has been held with us in a number of cases that an execution sale, when closed, is not subject to an upset bid—section 688 (superseded by chapter 255, Public Laws 1927), and sections 2591 and 3243 of the Consolidated Statutes not being applicable to execution sales—and, when regularly made, such sale is not to be set aside, except for some trick, artifice, fraud, oppression, or undue advantage, which must be alleged and proved, with each case to be judged by its own...