Opinion
(June Term, 1862.)
Where a court of equity is resorted to, for the sale of land, after the sale is ordered to be confirmed (by which the bid becomes accepted, if the master informs the court that the bidder refuses to comply with the terms of the sale, no order prejudicing the rights of the bidder can be made until he is made a party to the proceedings by the service of a rule upon him to show cause.
THIS is an appeal from an interlocutory order made by Osborne, J., at Fall Term, 1861, of the Court of Equity of MARTIN.
The Supreme Court having reversed the order directing the land in question to be resold, and that Coffield and Barnhill pay the difference between the first and a second sale, the cause came on for further consideration of the Court, and the following order was made: "Upon reading the report of the Master, it appearing thereby that the tract of land described in the petition as adjoining the land of C. Moore and others, bounded by the Roanoke River on the north, C. Moore and others on the south, Simmons, Grady Co., on the west, had been sold by the said Master and bid off by one Archibald H. Coffield for himself and Turner E. Barnhill, as the last and highest bidder, at the price of $6,000, and the said Archibald H. Coffield had been accepted by the Master as the purchaser thereof at the said sum, which sum, by the terms of the sale, was to be paid in sums as follows: $3,000 on 1 January, 1862, (307) with interest from 1 January, 1861, and $3,000 on 1 January, 1863, with interest from 1 January, 1861, and each sum was to be secured by the bond of the purchase, with good security. Whereupon, also, the decretal order for the sale of the premises being read, and now the matter being again moved by the counsel for the petitioner, Coffield and Barnhill opposed the motion, and they offered to file affidavits establishing the fact that before the sale no information was given to them, or either of them, as to the true state of the title of the petitioner to the land aforesaid; and they also opposed the motion, on the ground that the purchasers had no actual notice of this motion; the Court doth confirm the sale to the said Archibald H. Coffield, and thereupon, on the prayer of the counsel for the petitioner, the Court doth order that notice of this proceeding be served on Coffield and Barnhill by the Sheriff of this County, requiring them to appear at the next term of this Court, and complete their purchase as aforesaid according to the terms of the said sale, or then show cause to the contrary. And in the event that they do not, or that said Coffield does not complete the said purchase, or show to the Court cause to the contract, the said master forthwith re-sell the said premises, and that all the costs, charges and incidental expenses attending the said sale and occasioned by the default of the said Coffield and Barnhill, together with any loss of deficiency in the price and interest arising by a second sale, be ascertained by the master, and the same be paid into the office of this Court by the said Coffield and Barnhill for the benefit of the petitioners."
From this order Coffield and Barnhill prayed an appeal to the Supreme Court, which was allowed.
B. F. Moore for the petitioners.
Winston, Jr., for Coffield and Barnhill.
When the case was here before (ante 212) we pointed out the "orderly mode of proceeding," where the agency of a Court of Equity is resorted to in order to sell land.
On the coming in of the master's report, if the Court is satisfied that the interest of the petitioner, for whom the Court is acting, has been attended to, the first order is to confirm the sale. The (308) effect of which is to accept the bid of the purchaser, which is necessary, in order to "bind the bargain," so far as the petitioner is concerned. The purchaser is not a party to this order. He is not, then, before the Court, and of course his rights are not in any way prejudiced by the order of the confirmation.
Whereupon, the Court being informed by the Master that the purchaser declines to comply with the terms of the sale, a rule is taken on him to show cause; which may be returned instanter if the purchaser is present. The object of the rule is to bring the purchaser before the Court, and upon its return both parties are then heard, and the Court adopts one of the three orders set out in our former opinion.
His Honor erred in making any further order until the return of the rule; and indeed, the order which is made assumes that the purchaser will not be able to show any good cause, and proceeds to direct what shall be done in that event.
We presume his Honor was misled by the orders made in Harding v. Yarbrough, ante 215, which the reporter appends as a note to this case on former hearing. In that case, the purchaser made no difficulty, because of a defect in the title, or any irregularity in the mode of conducting the sale, or otherwise. The sole difficulty grew out of an inability to give the security. So in Harding v. Harding, 18 Eng. Ch. 514, from which the order in Harding v. Yarbrough was taken, there had been a reference, as to the title (which is always done in England, on account of the very complicated condition of title in that country), and the only object was to compel the purchaser to comply with the terms of sale. In our case the purchaser had a right to be heard in reference to his objections to the manner of making the sale, or to the title, or any other ground of objection, and the object of the rule was to give him a day in Court, and an opportunity of being heard. So the entry in Harding v. Yarbrough had no application.
This opinion will be certified that further proceedings may be taken in the Court below; the orders in that Court being reversed, except (309) so much as confirms the sale, and directs a rule on the purchaser to show cause at the next term.
PER CURIAM. Reversed.
Cited: Edney v. Edney, 80 N.C. 84; Capel v. Peebles, Id., 93; Farmer v. Daniel, 82 N.C. 157; Burgin v. Burgin, Id., 199; White, Ex parte, Id., 380; Harrell v. Blythe, 140 N.C. 416.