Whitlock v. Auburn Lumber Co.

• Decision Date: 23 March 1910
• Parties: WHITLOCK v. AUBURN LUMBER CO. Appeal of PIERCE.
• Court: North Carolina Supreme Court

67 S.E. 504

152 N.C. 192

WHITLOCK v. AUBURN LUMBER CO.

Appeal of PIERCE.

Supreme Court of North Carolina

March 23, 1910

Appeal from Superior Court, New Hanover County; Guion, Judge.

Proceedings between C. M. Whitlock and the Auburn Lumber Company. From a decree disallowing exceptions filed by a purchaser of property of the lumber company from its receiver, the purchaser, T. B. Pierce, appeals. Affirmed.

Where a party purchased from the receiver of an insolvent lumber company property of the lumber company consisting of a tramroad and right of way across certain lands, the receiver announcing at the sale that he would sell the property free from all liens and incumbrances, and it developed that the company did not own all of the right of way, the purchaser cannot complain where he was allowed to deduct from the purchase price the sum expended in securing this right of way.

This appeal presents the following facts for consideration: The defendant, an insolvent corporation, was placed in the hands of Cameron F. McRae, receiver. Its property consisted of a sawmill plant, timber rights, tramroad, rights of way, etc. During the progress of the litigation an order was made transferring the rights of certain creditors asserting liens upon certain of the company's property to the fund to be derived from the sale by the receiver, and an order of sale was made. Pursuant to said order, the receiver executed the order of sale on October 3, 1903, when T. B. Pierce became the last and highest bidder for $3,141. The sale was duly reported and confirmed, and the purchaser has paid $2,265.32 of the purchase price, leaving unpaid $865.68. At the sale the receiver announced that, by an order of court, all liens held by creditors against the property had been transferred from the property to the funds to be derived from sale, and that he would sell the property of the lumber company including timber, mill plant, buildings, tramroad, etc., free from liens or incumbrances. It is also found as a fact by the referee to whom the matter was referred by the jury that both the receiver and the purchaser understood and believed that the company owned rights of way over all the lands on which the tramway was located. This tramroad was about six miles in length, running from the mill to the Atlantic Coast Line Railroad, and was valuable in getting the lumber from the mill to the railroad. It developed after the sale that the company did not own the right of way across all the lands between its mill and the railroad, and the purchaser, Pierce was forbidden, two years after his purchase and possession thereunder, to longer use the tramroad on certain lands over which it passed; thereby the tramroad was rendered ineffective for its purpose, and the purchaser hauled a large quantity of lumber to another station at an increased cost to him. It, however, developed, and this fact is so found by the referee and adopted by the court, that the purchaser acquired the use of the right of way over the land of one of the contrariant owners for $20, and this sum was allowed the purchaser, Pierce, as a credit on the balance due, and that he acquired the right of way over the land of the only other objecting landowner without...