Southern Real Estate Loan & Trust Co. v. Atlantic Refining Co.

ClakksoN, J. N. C. Code, 1931 (Miehie), section 1744, in part, is as follows: “In all cases where there is a vested interest in real estate, and a contingent remainder over to persons who are not in being, or when the contingency has not yet happened which will determine who the remaindermen are, there may be a sale or mortgage of the property by a proceeding in the Superior Court, which proceeding shall be conducted in the manner pointed out in this section. . . . The court shall, if the interest of all parties require or would be materially enhanced by it, order a sale of such property or any part thereof for reinvestment,” etc. *504 In the 90-acre Dotger Estate land sold under tbis act there were no restrictions. The land was sold for reinvestment under the statute. The action under this section is to give the purchaser a fee-simple title. In the sale of the lot in question an offer was made by A. W. Burch on behalf of his wife, Ereda L. Burch (now Nisbet), to the commissioner to purchase the land in controversy, the price to be paid and manner of payment. The commissioner recommended acceptance of this offer. “No authority to restrict the property was asked in the report or granted in the order.” The judge presiding made an order confirming the proposed sale and directed the commissioner to make title to said property to the said Ereda L. Burch. The commissioner had no power or authority to put the following restrictions in the fee-simple deed made to Ereda L. Burch: “(a) The property shall be used for residential purposes only, and shall be occupied and owned by people of the white race only, (b) No residence shall be erected on the property at a cost of less than $4,000.” The restrictions are null and void. Thompson on Real Property, 1929 Supplement, section 2719, p. 934, speaking of the rights of purchaser at judicial sale, says: “The purchaser is entitled to a sound and marketable title.” In Meroney v. Tannehill, 215 Pac. Rep. (Okla.), 939 (943), citing numerous authorities, we find: “It may be contended, however, that the doctrine of caveat emptor applies, and that plaintiffs in error, purchasers at the judicial sale, must be content with whatever title they acquired. This position is not sound. The doctrine has been so relaxed that the purchaser at a judicial sale is entitled to expect and obtain a sound and marketable title to the property sold.” In Horton v. Jones, 167 N. C., 664 (668), it is said: “Among cases of judicial sales that are void, Judge Freeman instances those ‘where the property was not described in the pleadings upon which the judgment or order was based.’ Void Judicial Sales, page 19, par. 4 A. Again: ‘A license to sell, granted without any petition therefor, is void.’ Par. 11, page 53. Again, at page 58: ‘The property sold must be described in the petition. No jurisdiction is obtained over that which is not described.’ To same effect is Verry v. McClellan, 6 Gray (Mass.), 535; Colligan v. Cooney, 107 Tenn., 214; Wakefield v. Camel, 37 Am. Dec., 60; Falls v. Wright, 55 Ark., 562; Black on Judgments, sec. 242, et seq.” In Peal v. Martin, 207 N. C., 106 (108), speaking to the subject, it is said: “A commissioner appointed by a court of equity to sell land is empowered to do one specific act, viz., to sell the land and distribute the proceeds to the parties entitled thereto. He has no authority and can exercise no powers except such as may be necessary to execute the decree of the court.” *505 In the agreed ease there are other matters debated pro and con in the able briefs of the litigants in reference to the validity and invalidity of the restrictions. It is not necessary to consider them from the view we take of this case. For the reasons given, the judgment of the court below is Affirmed.