Burgin v. . Burgin

Dillard, J., after stating the case. We think His Honor, upon the affidavits in support of the motion and in opposition thereto, and on the facts found by himself, was in error in disallowing the motion to ascertain the unpaid purchase money, with a view to & specific performance of the contract by the purchasers under the orders of the court. By the confirmation of the sale, the heirs, selling through the agency of the court, had the right to have a specific execution of the contract by payment of the purchase money on the part of the purchasers, and were themselves under obligation to perform their part of the contract by executing title simultaneously, or having it done through a commissioner appointed for that purpose. Ex Parte Yates, 6 Jones Eq., 306; Edney v. Edney, 80 N. C., 81; Etheridge v. Vernoy, 80 N. C., 78; Rorer on Judicial Sales, § § 152, 153; Miller v. Feezor, ante 192. Here, it appeared from the bill in equity, and by the affidavit of R. H. Burgin, to whom the purchasers gave their bond for two hundred and forty dollars, and from whom they took receipt, and by whose consent a credit was entered on their bond to the clerk and master, that said R. H. Burgin was notan heir of James Burgin, but that his wife was the heir. And this being so, the share of the wife was in law realty to be invested and settled under the orders of the court, so as to be secure unto her or her real representatives. Bat. Rev., ch. 84, § 17, same as in Revised Code, ch. ■82, § 7. *200 The husband, even if the money had been paid into the office, could not have received it and given a good acquittance to the clerk and master therefor. The only way in which he could make the money his own, or exercise any control of it, would have been in some mode upon privy examination of the wife as in conveyances of land itself. In re Dozier’s Heirs, 1 Dev. Eq., 118; Bryan v. Bryan, 1 Dev. Eq., 47. The husband’s act in securing the note of the purchasers, and consenting to the entry of a credit on their bond to the master, was equally beyond his power to do, and the arrangement that was made amounted to nothing as a payment on the purchase money, and left the purchasers liable as before, to pay the money before they could be in a position to ask for title. The case of a judicial sale on confirmation is attended with the same reciprocal rights as between the parties asking the sale and the purchaser, as exists in a contract of private sale between vendor and vendee under articles. And in each case, the title being retained, no decree of specific performance, consistently with the rules which regulate the discretion of the chancellor, will be made for either party without a valuable consideration paid or offered to be paid at or before the time of the decree. Adams Eq., 78; 1 Story Eq., §§ 750, 769, 787; Oliver v. Dix, 1 Dev. and Bat. Eq., 605. The bond that was given to R. H. Burgin was unauthorized and no payment, as we have seen. Even if the power existed in the husband thus to arrange with the purchaser, the bond has not been paid, and the purchasers are insolvent and unable to pay, and in such case, no court will declare a trust of the retained legal title and compel its conveyance to the purchaser. The giving the bond of the purchaser is not a payment, but at most only an attempted substitution of one security for another, and the same not being paid, the parties’ equities existed as before, that is to *201 say, the heirs held the legal title in trust to secure the purchase money, and then for the purchasers, and the purchasers had the equity on payment of the purchase money to call for the title. 1 Story Eq., § 789; Scarlett v. Hunter, 3 Jones Eq., 84. Such being the rights of the heirs and the purchasers as between themselves, how stands the case with respect to Lytle and Bynum claiming by purchase at sheriff’s sale under execution against the purchasers? It is the established doctrine under many decisions of this court that a purchaser at sheriff’s sale only acquires such right in land as the judgment debtor was competent to convey, and that he takes the same subject to any equities or legal rights existing against the judgment debtor in relation thereto. Hicks v. Skinner, 71 N. C., 539; Johnson v. Lee, Busb. Eq., 43. Lytle and Bynum then, if indeed any title passed to them under the sale at which they bought, can only claim to hold just as the judgment debtor held and to have their equity for title in the same manner as he had it. The purchasers, under whom they claim, we have seen, could not ask for and compel by decree of court an execution of title to them without payment of the money, and so néither can they (claiming by act of law) have the-title except on payment of the purchase money. We hold, therefore, that notwithstanding the opposition of Lytle and Bynum, His Honor on the showing made should have instituted the proposed inquiry as to the payment of the purchase money as preliminary to ulterior orders for the reciprocal performance in specie of the contract of purchase, and the judgment of the court below disallowing the motion of plaintiff is reversed. This will be certified that further proceedings may be had in conformity to this opinion. Error. Reversed.