Whitlock v. Auburn Lumber Co.

MANNING, J\, after stating tbe case: In sneaking of tbe character of tbe reference in such cases as this, and of tbe power of tbe courts over tbe findings of tbe referee, this Court said, in Tate v. Davis, ante, 177, a case similar to this: “Tbe reference'was not one made under tbe provisions of tbe Code of Civil Procedure, where a referee is appointed to bear and determine issues raised by tbe pleadings in a civil action. It is mere inquiry made at the direction of a chancellor who wishes to inform bis conscience as to tbe justice of a demand made on a fund in bis control. He may set aside ex mero motu tbe recommendations of tbe referee or master, and examine into tbe facts himself.” Tbe judge, sitting as a chancellor in such matters, may adopt tbe findings of tbe person appointed by him to bear tbe *194 evidence and report Ms findings of fact, using tbe same evidence taken in sueb bearing, or bearing additional evidence, or tbe judge may reject sueb findings as be may disapprove, and determine tbe matter upon tbe facts so found by bim, and adjudge tbe result thereupon. Tbe contention of tbe appellant is that tbe sale by tbe receiver . was a judicial sale, and be bad tbe right to assume that be offered a good title — tbe entire title — as tbe sale of a less estate or interest was not expressly mentioned in tbe face of tbe decree, or clearly implied from tbe nature of tbe sale. Shields v. Allen, 77 N. C., 375; Edney v. Edney, 80 N. C., 81; Carraway v. Stancill, 137 N. C., 472. 'The question whether the sale of the property of an insolvent corporation is a judicial sale, Avithin tbe comprehension of tbe principle stated in tbe three eases above cited, is an interesting question, but we do not think it is presented by this appeal, for, conceding that it is a judicial sale and embraced within tbe rule stated, it is found by tbe referee and bis findings adopted by tbe judge, that in tbe two particulars wherein tbe purchaser claims be has suffered any loss or inconvenience, to wit, in securing tbe right of way over tbe land of Frederick and over the land of tbe Carlton heirs, be paid $20 for tbe former, which was allowed as a credit, and that to acquire tbe latter cost bim nothing. Upon tbe general question as to tbe application of tbe principle stated in tbe cases cited above, in Smith on Receivership, sec. 34, p. 100, it is said: “As to tbe title and condition of tbe property, the rule of caveat emptor applies, and tbe purchaser takes tbe property subject to all liens or outstanding interests therein.” Gluck and Becker’s Receiver of Corporations, sec. 39, p. 100, sec. 40, jd. .117; Alderson on Receivers, ¡5. 817; Beach on Receivers, sec. 73, p. 785; Larch v. Aultman, 75 Ind., 162; Hackensack Water Co. v. DeKay, 36 N. J. Eq., 548. We will not, however, determine this question. While the purchaser charges in bis petition filed, that be relied upon certain statements made bim by tbe receiver in a conversation about tbe sale, it is found as a fact that no misrepresentation was made by tbe receiver, and tbe findings expressly negative every suggestion of fraud. There is no evidence that tbe purchaser ever tendered tbe sum adjudged to be due by bim, and be is obliged, therefore, to pay interest. Our conclusion, therefore, is that there is no error in tbe judgment appealed from, and it is Affirmed.