Howard v. . Ray

Winborne, J. The order of resale of land in question from which appeal is taken appears to be in accordance with statutory authority. C. S.. 86. and C. S.. 2591. *712 When in special proceeding to sell real property to create assets with which to pay debts of a decedent an order for private sale is made by any Superior Court of the State, the statute, C. S., section 86, provides that “the provisions of section 2591, chapter, Mortgages and Deeds of Trust, not inconsistent with this section shall apply.” And in said section 2591 it is provided that a sale of real estate under the provisions thereof shall not be deemed to be closed under ten days, and that, if in ten days from the date of sale, the sale price be increased ten per cent where the price does not exceed five hundred dollars, - and five per cent where the price exceeds five hundred dollars, and the same is paid to the clerk of Superior Court, the clerk shall issue an order to require advertisement and resale of the real property. The facts in the case in hand bring it within the purview of these statutes. It is contended, however, that the bidder, offering to raise the bid, is not interested in the proceeds of the sale. While in this connection it is true that in C. S., 86, after providing that “the provisions of Section 2591, chapter, Mortgages and Deeds of Trust, not inconsistent with this section shall apply,” it is further provided “and the court may also, upon motion of any person interested in the proceeds of such sale, filed in writing within ten days from the date and report of said sale, together with satisfactory proof that said real estate has not been sold for its real value, require the sale to be re-opened, and thereupon the court may issue an order for the sale of such premises at public sale, as required by section 2591, chapter, Mortgages and Deeds of Trust,” the wording clearly indicates that the latter quoted provision is in addition to the former quoted provision. Moreover, whether the bid be raised under authority of O. S., 2591, as therein prescribed, or motion be made by party interested in-the proceeds for an order of resale under C. S., 86, as above quoted, it clearly appears that a private sale is open to either course for ten days from the date and report of sale. During that period the bidder acquires no right of possession or title. He is merely a preferred bidder. Creech v. Wilder, 212 N. C., 162, 193 S. E., 281, and cases cited. See also Building & Loan Assn. v. Black, 215 N. C., 400, 2 S. E. (2d), 6. The cases Thompson v. Rospigliosi, 162 N. C., 145, 77 S. E., 113, and Barcello v. Hapgood, 118 N. C., 712, 24 S. E., 124, upon which appellant relies, are distinguishable from, and are not inconsistent with decision here reached. The judgment below is Affirmed.