Dixon v. . Osborne

CoNNOR, J. The only assignment of error which can be considered on this appeal is that based upon the exception to the judgment in this action at May Term, 1931. There are no exceptions stated in the case on appeal, appearing in the record, to support the other assignments of *492 error relied upon by tbe plaintiffs.' These assignments of error, therefore, cannot be considered on this appeal. Only exceptions taken at the trial or assigned in the case on appeal will be considered by this Court. Howell v. R. R., 186 N. C., 239, 119 S. E., 198; Rawls v. R. R., 112 N. C., 211, 90 S. E., 116; Worley v. Logging Co., 157 N. C., 490, 73 S. E., 107. We have not considered, for the purpose of deciding whether it is valid or not, the contention of the plaintiffs that the provision in the judgment in this action at March Term, 1931, that the commissioners appointed by the court in the judgment at February Term, 1931, to sell the land described in the complaint, should report the sale made by them to the clerk or the assistant clerk of the court, for confirmation, is void, and that for this reason the confirmation of the sale made by the commissioners on 5 May, 1931, contained in the order of the assistant clerk dated 16 May, 1931, is likewise void. This contention is not presented on the record in this appeal. It has been held, however, by this Court that a decree for the sale of land in an action to foreclose a mortgage or deed of trust should direct the commissioner appointed by the court to make the sale, to report the sale to the court, for confirmation, before conveying the land to the purchaser. In Mebane v. Mebane, 80 N. C., 34, referring to the judgment in that case, Smith, G. J., says: “No report of the sale is required to be made to the court in order that it may be set aside or confirmed, and title ordered, but this is left to the uncontrolled discretion of the commissioner. This is entirely at variance with the nature of judicial sales. The commissioner acts as agent of the court, and must report to it all his doings in execution of its order. The bid is but a proposition to buy, and until accepted and sanctioned by the court, confers no right whatever upon the purchaser. The sale is consummated when that sanction is given and an order for title made and executed. This power will not be delegated to the agent who exposes the property to public biddings, 2 Jones Mort., sections 1608, 1637; Rover on Jud. Sales, 55, 58.” In that case a judgment vacating the sale which had not been confirmed by the court was affirmed. The foreclosure of the deed of trust in the instant case was by a decree of the court, and not under the power of sale contained in the deed of trust. The decree was made by the court in the exercise of its equitable jurisdiction. This jurisdiction exists as well for the protection of the mortgagor as for the benefit of the mortgagee. McLarty v. Urquhart, 153 N. C., 339, 69 S. E., 245. It is certainly irregular, and not in accordance with the practice in this State, for the court in an action to foreclose a mortgage or deed of trust to direct or authorize the commissioner appointed by the court to sell the property conveyed by the *493 mortgage or deed of trust to report tbe sale to tbe clerk of tbe court, for confirmation. "Whether an order of confirmation made by tbe clerk, under a provision in tbe judgment or decree of tbe court directing ■tbe commissioner to report tbe sale to tbe clerk for confirmation, is valid, is at least doubtful. It bas been uniformly beld tbat tbe clerk of tbe Superior Court bas no equitable jurisdiction. McCauley v. McCauley, 122 N. C., 288, 30 S. E., 344. His jurisdiction is altogether statutory. See In re Wright Estate, 200 N. C., 620, 158 S. E., 192. As tbe confirmation of a judicial sale involves tbe exercise of judicial discretion, it would seem tbat only tbe judge bas tbe power to confirm a sale under a decree of tbe court, and tbat an order confirming tbe sale signed by tbe clerk of tbe court, although authorized by tbe decree so to do, is void and without effect. Plaintiffs contend tbat there is error in tbe judgment in this action rendered at May Term, 1931. This contention is presented by their appeal from tbe judgment. It bas been uniformly beld by this Court tbat an appeal is itself an exception to tbe judgment and to any other matter appearing on tbe face of tbe record. Casualty Co. v. Green, 200 N. C., 535, 151 S. E., 797; Parker Co. v. Bank, 200 N. C., 441, 157 S. E., 419; Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713; R. R. v. Stewart, 132 N. C., 248, 43 S. E., 638; Baker v. Dawson, 131 N. C., 227, 42 S. E., 588; Wilson v. Lumber Co., 131 N. C., 163, 42 S. E., 565; Delozier v. Bird, 123 N. C., 689, 31 S. E., 834; Reade v. Street, 122 N. C., 301, 30 S. E., 124; Clark v. Peebles, 120 N. C., 31, 26 S. E., 924. Tbe judge bolding tbe May Term, 1931, of tbe Superior Court of Wake County beard this action on plaintiffs’ appeal from an order of tbe assistant clerk of said court. After tbe appeal was dismissed, it was error for tbe judge to confirm tbe order of tbe clerk, and also tbe sale made by tbe commissioners on 5 May, 1931. Having dismissed tbe appeal, tbe judge was without jurisdiction to further consider tbe matter. Tbe action is remanded to tbe Superior Court in order tbat plaintiffs’ appeal may be beard by tbe judge, and decided on plaintiffs’ exceptions to tbe order of tbe assistant clerk. Error and remanded.